The Law: It's Your Business

SEPTEMBER 2017 VOL. 89 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION

The Law: It’s Your Business

The Law Practice

Management Issue

Edited by Marian C. Rice

Starting in October, all issues of the Journal will feature a section on practice management and the business of law – topics of relevance to all attorneys in our quickly changing legal landscape. NEW YORK STATE BAR ASSOCIATION

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Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8688 NEW YORK STATE BAR ASSOCIATION NEW YORK STATE BAR ASSOCIATION Journal BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Hannah R. Arterian Syracuse Marvin N. Bagwell Westbury Brian J. Barney Rochester Mark A. Berman New York City Katherine W. Dandy White Plains Janet M. DiFiore Albany Elissa D. Hecker Irvington Michael J. Hutter Albany Barry Kamins Brooklyn Paul R. Kietzman Latham Daniel J. Kornstein New York City Ronald J. Levine New York City Julia J. Martin ANNUAL Syracuse Marian C. Rice Garden City 2018 MANAGING EDITOR MEETING JANUARY 22 – 26 Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly NEW YORK CITY Tarrytown

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NYSBA ADVERTISING Network Media Partners Attn: Holly Klarman, Account Executive 307 International Circle, Suite 190 Hunt Valley, Maryland 21030 Email: [email protected] Phone: 410.584.1960 Get Social: #nysba18 EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961 – 1998 CONTENTS SEPTEMBER 2017 THE LAW: IT’S YOUR BUSINESS Edited by Marian C. Rice 10 13 Ratchet Up Your Ethics to Create a Practice Clients Will Love by Carol Schiro Greenwald 18 The Legal Profession in Transition by Stephen P. Gallagher and Leonard E. Sienko, Jr. 22 Thinking of Going Solo? Be Prepared to Practice Law and Run a Business! by Deborah E. Kaminetzky DEPARTMENTS Qualified Retirement Plan Designs for 24 5 President’s Message Law Firms 8 CLE Seminar Schedule by Andrew E. Roth 34 Burden of Proof 27 Four Ways to Give Clients What They by David Paul Horowitz Want on Your LinkedIn Profile 49 New Members Welcomed by Allison C. Shields 53 Attorney Professionalism Forum 57 Becoming A Lawyer 30 Ensuring Privilege of a Pre-Breach by Lukas M. Horowitz Cybersecurity Assessment 61 Classified Notices by Erik B. Weinick 61 Index to Advertisers 63 2017–2018 Officers A Guide to Understanding 38 64 The Legal Writer the Laws of Interest by Gerald Lebovits by Adam Leitman Bailey and Dov Treiman 42 Want to Be an Entertainment Lawyer? Know Your CPLR by Hon. Martin Schoenfeld

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2017 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $30. Library subscription rate is $210 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

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Law Practice Management Is for Everyone

here was a time when assis- Hence, every lawyer has an ethical have emboldened non-lawyer provid- tance with law practice man- duty to keep abreast of technological ers to offer low cost services via the Tagement was for solos, small changes that affect his or her practice internet. We have a duty not to let firms and the managing agents of setting. This includes terms which may these technological advances change larger firms. Today, every lawyer seem foreign to so many of us: encryp- the legal profession’s core principles or needs assistance with law practice tion, cloud technology and cybersecu- the quality of service to our clients. We management – even lawyers happily rity – to name a few – as well as sub- also have a duty to protect the public ensconced in Big Law, in government jects like document management and from services which may harm them. jobs or with public service providers. email management, for which existing However, it would be a mistake to NY Rules of Professional Conduct office policies addressing paper have ignore the non-lawyer providers or to 1.1 contains the following comment, been adapted. Leaving these matters adopt a “Just Say No” attitude. If you adopted by our House of Delegates entirely to our office management is no don’t believe me, just ask Kodak. on March 28, 2015: longer an option. To meet these opportunities and To maintain the requisite knowl- Recognizing how important it is for challenges, NYSBA leadership is edge and skill, a lawyer should (i) our members to keep informed about dedicating significant resources to all keep abreast of changes in substan- the rapidly changing legal profession, aspects of the member experience. tive and procedural law relevant this issue of the NYSBA Journal is This includes staff changes, committee to the lawyer’s practice, (ii) keep devoted to law practice management. realignment, technology investment abreast of the benefits and risks asso- The Journal will henceforth have a sec- and a willingness to consider every ciated with technology the lawyer tion in each issue devoted to practice possible approach. uses to provide services to clients management, covering topics such as We already have a solid base. NYS- or to store or transmit confidential technology, finance, management and BA’s Law Practice Management Com- information, and (iii) engage in marketing. mittee has been creating resources for continuing study and education It is not only for ethical reasons that lawyers, law firm managers and legal and comply with all applicable we all must possess practice manage- continuing legal education requirement skills. Technological advances ments under 22 N.Y.C.R.R. Part have forever changed the way lawyers Sharon Stern Gerstman can be 1500 (emphasis added). deliver legal services to clients and reached at [email protected].

NYSBA Journal | September 2017 | 5 PRESIDENT’S MESSAGE professionals for over a decade. The service providers. They will help edu- conference series (www.nysba.org/ Committee provides information on cate members on potential risks and ManagingPartnersConference). The practice management trends, technolo- benefits of all types of legal technology programming included partner gy, marketing, client development and affecting their firms, give guidance on compensation, how mid-sized finance. No matter what your practice how to protect their data and devices firms survive, leadership and suc- setting, you can find resources that and be a resource to NYSBA as it cession planning. These are avail- help you do your job effectively and evolves and expands its offerings in able online and we are looking efficiently. Visit www.nysba.org/LPM these areas. forward to this year’s series. for these and other tools. Our practice management team is • Statewide programming on risk We formed a new Committee on developing programming to deliver management and insurance Technology and the Legal Profession this information and guidance. A few considerations will provide in- in 2017 to assist the Bar, the public and examples: depth coverage of malpractice the bench in all legal technology issues. • A solo conference on September insurance. NYSBA members who The approach to changes in the profes- 13 featuring updates on Legal- attend will save 7.5 percent on sion is complicated and controversial Zoom, Avvo and ethical compli- their professional liability insur- at times. This Committee, chaired by ance in the digital age. Recent ance policy premiums with USI Mark Berman, which will represent ethics opinions on attorney (in addition to the 7.5 percent diverse viewpoints on law and tech- advertising and participating in they receive for NYSBA member- nology, is composed of members from the providers’ legal panels (Ethics ship). all parts of the State and all segments Opinions 1131 and 1132) will be NYSBA is increasing our online of the Bar. The Committee will form explored and discussed. information services to expand the subcommittees/advisory groups that • A new cybersecurity program on way we reach and deliver content to will include both lawyers and non- September 19 that will include our members. We will be producing lawyers, such as specialty bar groups, how to protect yourself and safe- videos, podcasts and exploring myr- judges, academics, IT personnel, and guard your firm’s data. It will iad other options. A subcommittee of others with expertise and insight also discuss, in depth, cybersecu- our Executive Committee, chaired by regarding new technologies and law- rity insurance concerns, what to Michael Fox, will be assessing all of related businesses. look for when purchasing insur- our publications and our options going The subcommittees will address ance and what should be covered. forward. artificial intelligence in law, cybersecu- • An advisory panel of 60 manag- The overlap of practice management rity, new technologies/electronic coming partners created an excep- and technology cannot be ignored, and munications with clients and online tional four-part managing partner the Law Practice Management Com- mittee and the Committee on Technol- ogy and the Legal Profession will be NEW YORK STATE BAR ASSOCIATION two Committees to watch. The March/ April 2018 Journal will showcase their efforts in an issue devoted to technology and the future of the profes- “Pro Bono in sion. If lawyers can identify trends that impact their practice, they may be able Your PJs” to make decisions that will influence those trends. As a start, this issue of the Journal is Log onto intended to provoke attorneys to think NY.freelegalanswers.org strategically about their practices. Col- lectively, these articles and all the ones and sign up to be a that will follow raise a host of practice volunteer today! management issues for law firms large and small. How well you and your law firm adapt to our rapidly chang- Questions? ing world will likely impact whether Contact Kristen Wagner you will thrive. NYSBA is committed Director, Pro Bono Services, NYSBA to doing all that we can to help you. n [email protected] | 518.487.5640

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The Law: It’s Your Business

Marian C. Rice, current Chair of NYSBA’s Law Practice Management Committee and past By Marian C. Rice President of the Nassau County Bar Association, is the chair of the Attorney Liability Practice Group at the Garden City law firm of L’Abbate, Balkan, Colavita & Contini, LLP and has focused her practice on representing attorneys in professional liability matters for more than 35 years. The Law:

It’s Your ’m not sure everyone is aware yet – but there is a new sheriff in town! In February, Pamela McDevitt joined I(or should I say re-joined) the New York State Bar Association – this time in the role of Executive Director. Business It is a joy to have Pam back with us. She brings with her years of experience as the American Bar Association Law Practice Division Director. This background, combined with her prior stint with NYSBA Law Practice Management By Marian C. Rice (LPM), makes her a serious cheerleader for the role Law Practice Management plays in the life of every attorney and every law firm. Did I say cheerleader? Make that whirling dervish – Pam’s enthusiasm and never-ending ideas for articles, projects, webcasts and member benefits have jumpstarted LPM and its role at NYSBA and in the NYSBA Journal.

NYSBA Journal | September 2017 | 11 For the past few years, the September issue of the give ideas on how to bump up your marketing skills. Journal has been devoted to articles focusing on the many Carol Schiro Greenwald outlines how a focus on ethics facets of law practice management: technology, human will enable you to build a practice your clients will love, resources, marketing, finance, ethics, risk management, while Allison C. Shields offers tips on how to get the most project management, cyber security (and liability) . . . out of your LinkedIn profile. the list does not end. The Journal is committed to helping While we spend a great deal of time helping solo and lawyers keep pace with the demands of the rapidly small firms start off their careers on the right path, in this changing legal landscape. Going forward, each issue edition of the Journal, we also focus on what the future of the Journal will devote a collection of articles to the holds for long-practicing attorneys. In their article, The various aspects of law practice management. Changing Face of Succession Planning, Stephen Gallagher and Leonard E. Sienko Jr. examine issues involving Lawyers have to master not just the practice succession and “encore careers.” Equally as important – and way too often neglected – is developing law, but a spectrum of challenges a plan for the end of your career. Andrew E. Roth explores never faced by attorneys in the past. qualified retirement plan designs for law firms. The news is inundated with tales of cyber terrorism It’s hard to imagine Atticus Finch, Frank Galvin, or directed at attorneys and law firms. Learning the Perry Mason ever filing a motion paper via the internet. vulnerabilities of your law firm’s technology is an integral It’s harder still to envision them poring over a potential part of practice and part of your ethical responsibilities. marketing plan for their practice or deciding which office In his article, Erik B. Weinick shows how to protect the accounting software to buy. And it’s not because they are privilege of a pre-breach cybersecurity assessment. In fictional lawyers who practiced in a Hollywood studio furthering one’s practice skills, Adam Leitman Bailey and rather than a courtroom. It’s because they projected Dov Treiman provide a valuable guide to understanding an image of a lawyer who zealously, even obsessively, the laws of interest. And please take time to review served his clients, and justice, above all else. There was the nuggets of wisdom addressed monthly in Vince no time for the more mundane duties of practicing law. Syracuse’s Attorney Professionalism Forum. If those tasks mattered at all, they were left to minor It is not easy to keep on top of these constant changes characters back at the office. What wouldn’t you give but NYSBA’s LPM Committee is here to help. Our goal today for a Della Street in your life, capably handling is to direct the attention of the many, many talented all of the administrative tasks – and appearing in court NYSBA members to resources that will develop their delivering the pivotal document exactly when needed? skills in managing the practice of law. The Committee is That image doesn’t work today. Today’s real life dedicated to providing resources that enable attorneys to lawyers have to be zealous advocates, of course. But they obtain the information needed to manage their practices have to be more than that. They realize that if they are to and get back to the primary goal of representing clients. succeed they have to master not just the law, but a whole Through materials located on the NYSBA website, the spectrum of challenges never faced by attorneys in the LPM Committee provides lawyers, law firm managers past. Today a lawyer not only has to know how to e-file, and legal professionals with information on practice but also how to send documents to the cloud, and how to management trends, marketing, client development, legal protect against security breaches. They have to know how technology and finance. Whether you’re a solo practitioner to market themselves in an era of intense competition. or a managing partner at a national law firm, you’ll find They have to know how they can serve their clients while law practice management materials designed to meet all the time remaining within ethical boundaries. These your day-to-day practice needs. Checklists, best practices, are not mundane tasks to delegate to support staff. They guidelines, publications and continuing legal education are tasks for any lawyer to master, young and old, in all programs provide up-to-date information and practical settings from solo practice to large firms. tips to help you efficiently manage your law practice. The articles in this issue reflect the scope of changes Check out our offerings on the NYSBA website and please and challenges for today’s lawyer. For those thinking of let us know of any topic you would like to see addressed. starting their own practice and wondering how to deal As it was in eras past, so it is today that an attorney with the everyday business and marketing challenges, who fails to keep abreast of changes in the law cannot we’ve got you covered. Running a solo practice is one of serve his or her clients well. But today, as these articles the most difficult – yet satisfying – roles an attorney can show, the same applies to attorneys who fail to keep undertake. The nuts and bolts of running a solo business on top of sound practice management. In short, the are explained by Deborah E. Kaminetzky in her article lawyer who fails to keep current is the lawyer who faces Thinking of Going Solo? Be Prepared to Practice Law and early obsolescence. LPM is dedicated to not letting that Run a Business. Even an excellent lawyer has little to do happen. n without clients. Two of the articles in this month’s Journal

12 | September 2017 | NYSBA Journal Ratchet Up Your Ethics to Create a Practice Clients Will Love By Carol Schiro Greenwald

Lawyers who build a practice and firm culture around hree of the first four sections in the N.Y. Rules of robust implementation of these rules will be addressing, Professional Conduct (RPC) set the guidelines for positively, one of the major shifts in the legal market Tthe kind of informed, participative, and commu- nicative relationship between attorney and client that Carol Schiro Greenwald, Ph.D. is a strategist and coach for individual today’s empowered consumers want. These rules cover lawyers and small to midsize law firms. She can be reached at 914-834- the allocation of authority between client and lawyer,1 the 9320 or [email protected]. obligation to be diligent2 and communication guidelines.3

NYSBA Journal | September 2017 | 13 today: “the emergence of a buyer’s market in which means to obtain those objectives. “[A] lawyer shall abide clients demand greater value for the dollars they spend by a client’s decisions concerning the objectives of repre- for legal services and in which value is measured by effi- sentation and, . . . ; shall consult with the client as to the ciency, predictability and cost-effectiveness in the deliv- means by which they are to be pursued. A lawyer shall ery of services.”4 To this end, clients are becoming more abide by the client’s decision whether to settle a matter.”5 involved in the management and processes of their cases. Sometimes clients authorize specific actions without the This article will discuss clients’ perceptions of service need for further consultation, but they may revoke this value, the shared decision-making relationship estab- authority at any time.6 lished in the RPC, and some practical changes lawyers While ultimate authority rests with clients, usually can implement to make these ethical requirements part of they will defer to their lawyer’s skill and knowledge their approach to the practice of law. regarding the appropriate actions. Lawyers may use their professional judgment to “assert a right or position of Value the client, or accede to reasonable requests of opposing Clients determine the value of legal services the same counsel, when doing so does not prejudice the rights of way they arrive at a value for any service. It is a per- the client.”7 When disagreements with clients arise, law- sonal assessment rooted in a combination of rational and yers “should seek a mutually acceptable resolution of the emotional impressions which, in turn, are based on their disagreement.”8 experience and expectations. Rule 1.4(b) requires a lawyer to communicate sufficient information so the client can make “informed A client’s sense of well-being decisions.” The content should be appropriate for a “com- prehending and responsible adult.”9 Specifically, lawyers and openness to establishing should “promptly inform” clients about: a relationship with you begins • Any decision or circumstance that will require informed consent; the minute they open your • Any information that the court or other laws require office door. be communicated; • All material developments such as settlement or Typically, value reflects benefits rather than features plea offers.10 – results rather than legal prowess. Legal skill and expe- “Informed consent” denotes the agreement by a per- rience are taken for granted since that is what you were son to a proposed course of conduct after the lawyer hired for. Benefits relate to specific case results and how has communicated information adequate for the person well the lawyer meets the client’s needs and expectations. to make an informed decision, and after the lawyer has Service quality often becomes the catch-all benchmark for adequately explained to the person the material risks of establishing value. the proposed course of conduct and reasonable available The value determination process is similar whether alternatives.11 the client is an experienced general counsel or a clueless Lawyers are also required to keep the lines of com- consumer. munication open by: • Dealing with lawyer clients may be easier because • Keeping the client “reasonably informed” as to the you both speak the same “language,” yet more dif- matter’s status, including decisions regarding rou- ficult because they may demand a more active role tine activities such as scheduling. in the management of the case. • Complying promptly with the client’s “reasonable • Consumers typically derive their view of law from requests” for information.12 friends’ stories about their brushes with the law, or If clients want their lawyer to do something not permit- from legal television shows in which the issue is ted by the rules or other laws, the lawyer needs to explain resolved in less than an hour and usually in favor why such action is not permitted.13 The rules make clear of the client protagonist. These clients need more that it is the lawyer’s responsibility to educate clients. “The education as to the way the “real” legal process guiding principle is that the lawyer should fulfill reason- functions, but may give their lawyers more latitude able client expectations for information consistent with the regarding the means used to meet their objectives. duty to act in the client’s best interest and the client’s over- At either end of the spectrum, if clients don’t under- all requirements as to the character of the representation.”14 stand what is happening and why, they will have diffi- Rule 1.3 requires a lawyer to “act with reasonable culty assessing the value of your work. diligence and promptness in representing a client.” Com- ment [2] notes the need to adopt office procedures that Lawyer-Client Relationship effectively manage the process to ensure both timely In broad strokes, clients are in charge of the beginning responses and personal promptness. Comment [3] deals and end of a representation; lawyers are in charge of the with the impact of procrastination, noting that:

14 | September 2017 | NYSBA Journal BUSINESS OF LAW • “The passage of time” may adversely affect the client’s interests. What Clients Want • “[U]nreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s Objective Results: trustworthiness.” • Predictability in terms of process, tim- • In addition, mismatched expectations regarding ing and costs time are a major source of client complaints. • Efficiency measured in time and Sometimes it seems easier for the lawyer to seek for- money savings giveness instead of permission, act first and then address the client’s complaints, because to explain all the thinking • Minimization of risk, both financial behind a legal strategy seems overwhelming. Or the law- and strategic yer doesn’t want to take the time to walk yet another cli- • Protection from future problems ent through the basics. These instincts are human, but it • Resolution of current problems is strategically in the lawyer’s interests to make attorney- client interactions smoother by creating a client-focused Personal Issues: culture that explains up front how the lawyer and firm work with clients. • Impact on personal image and repu- Setting expectations at the beginning of a relationship tation establishes a baseline that you can always return to if the • Financial concerns relationship begins to shift into negative territory. Let’s • Lack of control over the outcome look at some easy, practical client-focused communication practices that will help to keep you and your client • Insecurity on the same track. • Impact on job, career, personal life A Picture Is Worth 1,000 Words A client’s sense of well-being and openness to establishing a relationship with you begins the minute they open standing of the range of results that are legally obtain- your office door. They are expecting to see a professional able, will give you a good sense of the degree to which setting, a waiting area, and, hopefully, something they you will have to modify perceptions and fill in knowl- would like to read while they wait to meet you. edge gaps. Finally, you need to discuss finances: your If you have a receptionist, he or she becomes the first fees and their ability to pay. If clients seem irrational in important “touchpoint” for the client. If the reception- their requirements and emotionally driven in terms of ist is welcoming and gracious and makes the client feel the results they want you may not want to take them on expected and comfortable, the relationship will be off to as a client. a good start before you enter the room. However, if he or Assuming the discussion goes well and you end the she acts bored or rude or disinterested, this will set up an meeting with a handshake and an agreement to work immediate negative vibe. together, the next step is to send an engagement letter If you meet the client in a conference room, the room that sets out expectations for both you and the client. should be neat and clean. Papers and whiteboard notes Whether the client is an in-house lawyer or a layman, it left from previous meetings suggest a cavalier attitude is important to write as much as possible in clear English toward confidentiality. If you meet in your office, it too rather than legal jargon. Even the in-house lawyer will should be neat because, as my mother used to say, “messy need to show the document to nonlawyers, so if you use desk, messy mind.” business English rather than legalese they will be pleased by the time saved because they don’t need to write an First Steps explanatory cover memo. During the initial conversation you should discuss the In addition to the mandated sections on scope of firm’s rules for communicating with clients. You should work, fees, and expenses, and the client’s right to arbitra- find out what their expectations are in terms of: tion, a client-friendly engagement letter will explain the • Content and timing of discussions; respective responsibilities of the client and lawyer, sum- • Preferred communication methods – in person, marize expectations on both sides, outline the process, phone, email; and provide an estimated budget to the extent possible, • Role and responsibilities of the client, and introduce the members of the team, and summarize the • Role and responsibilities of the attorney. agreed-upon methods and schedule for communication. This conversation will provide your first clues as to Review the engagement letter with clients and have them whether your work styles will mesh successfully. Your sign off on it. discussion of their goals and objectives, and their under-

NYSBA Journal | September 2017 | 15 Personal Preferences out based on their memories of what happened, when Everyone has a preferred communication device – cell and why. phone, office phone – and a preferred form of communication – email, texting, face-to-face. As you talk about Emails Need Context ground rules for working together, ask them to outline The advantage of emails is the ability to write them their communication preferences regarding: when and where you have time. The disadvantage is that • Preferred mode of contact; emails are a one-way communication vehicle – from you • Preferred time of day to take calls; to someone, somewhere. You don’t know when they will • Calls preferred on weekends or week days; read it or what they are doing when it arrives to be read. • Meetings: in-person or by telephone; Although their cases are important to them, clients • Their level of involvement in the matter – how may not be on top of every legal move, or they may be often, how detailed; and involved in something else that is important to them. To • Degree of lawyer autonomy they are comfortable make sure that they read your email in the context of your with. case, begin by reminding them: This discussion gives you a chance to lay out your • What has been happening. own communication preferences: • What is the strategy you are implementing. • Mode of contact; • Where you are today. • Time of day and days of week preferences; • Where this email fits into the process. • Your response time for calls; • The main points you want them to focus on. • How often you will talk to them in between specific • If there is an attachment, summarize the purpose of decisions or actions. the document and its main points. You should also identify whom to talk to if you can- • What you want them to do after they read it. not reach the client, and who in your office will answer Context is required whether the email contains mat- questions if you are not available. This is the time to say ter updates or documents to review. The context acts as if you do not take weekend calls or calls after 7 p.m. dur- a directional signal telling them the reason they received ing the week. Also, you should explain how you charge the information, where it fits in the process and what role for phone calls, For example, are short calls or scheduling they will play in next steps.

A client-focused firm that embodies the intent of the rules will also have policies for memorializing meetings and conversations. calls complimentary, but calls over five minutes charged It is also important to treat the language in an email as at your hourly rate? Or, do you charge for all calls? you would language in a professional letter even though All the information should be noted on a chart or in a emails seem to be a more casual form of communication. memo and signed off on by both of you. This information There are several reasons to take care: becomes another baseline to refer back to when the need • Clients view everything from their lawyer as repre- arises to reset expectations. sentative of the lawyer’s legal expertise and professionalism. Typos and semi-sentences make a writer Memories Morph look sloppy, and sometimes make it harder for the A client-focused firm that embodies the intent of the reader to follow the line of thinking. rules will also have policies for memorializing meetings • These emails also become part of the documentation and conversations. At the end of in-person meetings or of what you have done and when it was completed. calls, you should write a file memo summarizing the gist To counter the urge to hit send immediately, it is good of the conversation, agreed upon direction and activities practice to set the email aside for an hour or more and and next steps. File the memo and send a copy to the cli- then reread it to be sure the content is clear. In addition, ent as well with a cover note asking him or her to read it use spell check on emails and all other written materials and write back agreeing that it covers the conversation or that go to clients. indicating where it falls short. These memoranda become building blocks in a con- Think of Monthly Invoices as Stories struct for managing client expectations. The memoranda Your monthly bills are your best communication tools for become references for discussing how the matter has reinforcing clients’ expectations, reminding them of the evolved. These discussions provide a reality check for purpose of their matters and the steps you have taken clients who are upset with the way the case is playing to get them the results they want. Whether you offer a

16 | September 2017 | NYSBA Journal BUSINESS OF LAW flat fee or bill hourly, it is easier for clients to follow the “story” if you can show specific activity items together under each action step. Give Clients What They Want For example, if you are drafting a contract, list all • Make them comfortable in your world: related activities such as research time, drafting time, physically, in terms of your office set- conversations with other lawyers related to its content ting, and mentally, by understanding and conversations about it with the client under one what they want in terms of where heading: Draft Contract. This provides a clearer picture they are coming from. of what you did to achieve a desired result. Also, if you are billing hourly try to resist showing • See the interaction with you and your time in sixths of an hour since it is often difficult for firm from their point of view. clients to translate these notations into regular minutes • Set up communication protocols that and hours. respond to their time parameters and In addition to the backup detail, add an introductory yours. context paragraph reminding clients of where you were • Be action oriented: Anticipate prob- when the month began, where you are now, and what lems and propose solutions. happened in between. At the end of every bill, be sure to thank them for the opportunity to be of assistance. • Recognize and validate their need to anticipate and control costs. Concluding Thoughts • Understand their definition of success When you take the communication admonitions in the and work toward it. Rules of Professional Conduct seriously they provide a platform that merges professionalism and service, show- cases your legal expertise and offers clients the relevant 11. RPC 1.0(j). participatory role they prefer. Your adaptation to a client 12. RPC 1.4(a)(3)(4). focus begins by understanding the emotional and ratio- 13. RPC 1.4(5). nal needs of the client. It incorporates this perception in 14. RPC 1.4, cmt. 5. both written and verbal communications with the client. Written communications, especially memoranda memorializing conversations and emails explaining documents, create a paper trail that reinforces the expectations and guidelines you established in the engagement Learn more MEMBER BENEFIT about the Ethics App letter. Use invoices to tell stories that reinforce the prog- SCAN HERE >> ress and legal acumen your client expects. In addition to sharing the Statements of Client’s Rights and Responsibilities with the engagement letter, create your own set of communication guidelines and review them with clients throughout the engagement. Make ethically responsive client service your value proposition, and build your practice around it. The result will be happy clients who put a high value on their relationship with you. These are the clients who will refer you to others and return whenever they need additional legal work. n

1. N.Y. Rules of Professional Conduct Rule 1.2 (RPC). 2. RPC 1.3. 3. RPC 1.4. 4. Georgetown Law Legal Executive Institute and Peer Monitor, 2017 NYSBA ETHICS APP Report on the State of the Legal Market, p.17. Have access to more than 1,000 NYSBA Ethics Opinions 5. RPC 1.2(a). ranging from 1964 to today on your mobile device(s). Download the Free NYSBA Mobile Ethics App for your 6. RPC 1.2, cmt. 2. Apple, Android & Blackberry. 7. RPC 2(d). 8. RPC 1.2, cmt. 2. For more information visit: 9. RPC 1.4, cmt. 5. www.nysba.org/EthicsApp 10. RPC 1.4(a)(1).

NYSBA Journal | September 2017 | 17 Leonard E. Sienko Jr. is a solo practitioner in Hancock, NY. A general practice lawyer for 39 years, he is well-known for his use of the internet for legal research. He graduated from Boston College, received a master’s in divinity from Andover-Newton Theological School, and a J.D. from Boston College Law School. He is reach- able through his website, users. hancock.net/lennyesq. Stephen P. Gallagher, president of Leadershipcoach, is an executive coach who works with individual attorneys in developing and implementing transition plans. Stephen also works with law firms to develop succession strategies. Stephen was NYSBA’s first Director of Law Office Economics and Management from 1990 through 2003. Stephen holds a master’s degree in Organizational Dynamics from the University of Pennsylvania. He can be contacted at [email protected].

The Legal Profession in Transition By Stephen P. Gallagher and Leonard E. Sienko, Jr.

n September 2004, Leonard E. Sienko, Jr. and I teamed new approaches that would give lawyers more and better up to write our first article for the NYSBA Journal. choices for living longer, healthier lives. We are finding IThe title of that article was Yesterday’s Strategies that young lawyers as well as mid-career lawyers are Rarely Answer Tomorrow’s Problems. In October 2015, we just as interested in discovering new ways of knowing got together again to write a follow-up article, For Sole and being as more senior lawyers who may be looking to Practitioners, The Future Is Not What It Used to Be. We begin winding down their life’s work. thought this might be a good time to once again share our Like it or not, traditional forms of retirement are in the thoughts regarding today’s challenges. I generally focus process of being replaced by a new stage of life that starts on the trends, while Lenny tempers my theories with for many in midlife and lasts well into true old age. This practical, real-world tales. He has been in the trenches as new period that essentially amounts to a second half of a solo practitioner in Hancock, N.Y., for 39 years. life is, as yet, ill-defined, but this new stage in life prom- ises to allow boomers to continue contributing to society Aging of the Workforce in new ways, while they pursue deeper meaning and We are both members of the baby boomer genera- fulfill broader social purposes. tion born between the years 1946 and 1964, so we are LS: The new reality is that many lawyers and others are in part of the group that is responsible for changing the no position financially to retire. A quick perusal of the television traditional demographic shape of our society. The legal ads bombarding prospective retirees about how much money profession, like all of society, is being challenged to design they will need to maintain their standard of living (10x their

18 | September 2017 | NYSBA Journal BUSINESS OF LAW annual salary by age 67, says Fidelity) makes one feel less than and siblings. This multi-generational family dynamic is adequate.1 the new transition “wild card.” Far too many law firms We believe aging of the workforce is a phenomenon follow the mistaken idea that the best way to help people that law firms and bar associations can no longer ignore, through this transition period is to deny the transition so we hope to start a dialogue about how the legal profes- is even taking place. We believe that law firms and bar sion can better utilize the skills of older attorneys, age 55 associations can do much more to help talented lawyers and up, currently in the workforce. We are also hoping through these periods of transition. to convince bar associations to create forums that would LS: Sandwiched between caring for elderly parents and enable young lawyers to meet with experienced lawyers paying for their own children’s college, many allegedly middle- for support in finding their place in the profession. The class lawyers keep working because they have to. Faced with third challenge we see before us will be to convince law the spectacle of rock stars touring well into their 70s, we are firms to allow transition planning to begin much earlier. also seeing lawyers of the same age doing the same thing for We believe everyone who holds a license to practice law the same reason – they need/want the money. Paul Campos’s needs to be involved in figuring out how best to take article The Collapsing Economics of Solo Legal Practice advantage of this aging workforce. states that the average compensation for solo practitioners has declined sharply over the last 25 years. He also suggests that The New Face of Retirement – Encore Careers the median solo practitioner is earning less than $35,000 per Baby boomers are now entering the traditional retirement year (and this statistic does not include new attorneys).2 years to the tune of 3.5 million people every year, includ- I have found that those firms that prize the interde- ing many individuals who are beginning to challenge pendence and mutual responsibility among all genera- traditional views of retirement. We now know that many tions are much better prepared to help their employees baby boomers are going to work longer than their parents through these periods of transition. Senior lawyers in did, whether they have to, want to, or are compelled to do these firms seem to approach retirement as a way some combination of the two. Even in the legal market, of gaining renewed purpose in their lives. Everyone we are beginning to see more and more boomers looking looks to each other to find something different, perhaps for a second, and even a third, “encore career,” as their health and energy hold out well into their 80s and 90s. Unfortunately, lawyers who are embarking on these encore careers currently cannot expect smooth transitions because employers – and that includes law firms – generally aren’t helping. Up until now, almost all the drivers to change the status quo have come from individuals themselves, as they refuse to walk away from meaningful, productive careers to be permanently put out to pasture.

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NYSBA Journal | September 2017 | 19 something novel, and certainly something interesting at It is our belief that lawyers hopeful of winding down deeply personal levels. Law firms play an increasingly their law practice need buyers, and there are large num- important role in changing their culture to allow life’s bers of less experienced young lawyers looking to posi- transitions to take place. tion themselves to buy. At the same time, young lawyers LS: For solos, the new symbol of retirement is no longer the who are coming out of school with far too much school gold watch or mounted gavel. The solo looks forward to an actu- debt need training and patience to accumulate the funds al vehicle, i.e., the 18-wheeler truck, which pulls up out front of to buy into a practice. the office as muscular youngsters scramble down and around LS: What young lawyers need is a system similar to what hauling out your boxes of files and toss them into the maw of a has been in place for new doctors in rural areas for many years. giant, on-board shredder. Thirty or 40 years of files, hopefully I well remember in my first few years in practice, serving on stripped of original documents, previously safely delivered to a search committee to attract a doctor to our small, rural com- the clients, are ground up before your very eyes. There is some- munity. It wasn’t enough that there were state and federal thing very final about watching years of your work life ground programs in place to offer financial incentives and loan forgive- up and whisked away. There is certainly finality about the bill ness for practicing in a “medically underserved area” (this was for the service, which is usually required to be paid in advance. 35 years ago; but the medical student loans were enormous by 1980s standards). The community had to put together a package for the young physician, which would provide free rent, a Transition is the process of letting guaranteed salary, office staff, and full benefits. Some candidates needed full employment for a spouse. go of the way things used to be I often thought about the irony of sitting on that committee, and taking hold of the way they suggesting additional benefits for the new doctor, as I figured out how to pay my own rent and start a practice, unable to subsequently become. afford a secretary. It was clear the community thought they needed to provide financial assistance for the new doctor – not A few hours with the shredder truck and you’ll under- the new lawyer. stand “transition.” These days, anecdotally, I don’t see much in the sale of practices from retiring solos to young attorneys. I do see older Case Study 1 – Solo to Solo – Then Sold! attorneys being taken on as “Of Counsel” for larger firms in Whenever anyone decides to wind down a law practice, nearby cities, feeding their remaining clients to the big firm. selling it to a partner or third party, or bringing in a pro- The occasional purchase of a practice, by a younger attorney or tégé to transition the practice over time, it is always a anyone else, more often than not consists of a purchase of the challenge. The following comments from a friend may be real estate and furnishings of the solo’s law office. If we want to helpful in understanding why winding down a practice assist young attorneys in taking over “practices” from retiring can be so challenging: solos, we need to figure out a way to come up with low-interest I’m still working full time. All of my associates left me financing for such purchases. It would be nice to trade a law last year, I’m back to a solo. Two left the firm at my office in wintery upstate for a condo in a warm climate. That’s request. One left to work closer to home – he had a the kind of transition I’d like to see a lender support. Maybe 45-minute commute each day. I had mixed emotions solos need a new type of revolving loan fund, a new type of – he was a nice guy and well qualified – but he mar- cooperative financial setup. ried a socialite and didn’t want to work very hard. The fourth one hurt! He was the one who was supposed to take over the practice in three or four years or maybe Case Study 2 – Firm to Firm – New Beginnings sooner. He left, allegedly, to go to a bigger firm so he With the large number of experienced lawyers positioned could work on “bigger estates.” Totally unexpected, to leave the profession over the next three to five years, one-week notice. I believe it is critical that law firms look more closely at I just no longer have my heir apparent, and at 66, I their own partner age profiles, practice area coverage, not only don’t have anyone on the horizon for succes- and ongoing client relationships. I hope the following sion, I’m now quite gun-shy to hire anyone for that story puts a human face to some of the problems and the purpose. My thoughts at this time are to just continue opportunities. for another couple of years, and then see if I can find John admits to being over 65 now. He reports that a someone who wants to buy the practice. year ago, he left a law firm partnership (five attorneys On a positive side, I know this individual has been plus himself) to join another local firm as Senior Counsel able to continue building his practice for a possible sale (two partners, one other Senior Counsel, and four associ- sometime in the future. I see far too many solo practitio- ate attorneys). After notifying the clients he was serving ners who have completely given up on finding another that he was leaving, he was able to take almost 100 per- lawyer to work with in transitioning ownership. This is cent of those clients to the new firm. a mistake!

20 | September 2017 | NYSBA Journal BUSINESS OF LAW His association with his new firm was enthusiastically his eyes to light at the end of the tunnel as well as a real supported by the entire firm, its attorneys, and its staff. possibility that what he built over 27 years actually had He was able to bring added value to this firm as he filled a value. a “niche” of sorts and added to one of its practice areas. Chuck knows he is the type of person who will never He has been able to support the clientele of the new firm, fully retire from the business of running his law prac- and the attorneys in this new firm have provided input tice, but Chuck is now seeing his associate’s potential to and advice for “his” clients. The relationship is based on (1) assist him with building his practice as the associate mutual respect, and it has provided opportunities for is a true rainmaker, and (2) a real potential buyer of added growth. The attorneys are able to consult with the practice as his associate sees the true value of the each other and share advice and creative thinking for the practice. clients. Needless to say, this transition has been success- Chuck enjoys being a mentor, in part, because he ful. This new firm has been able to take on cases where never had a mentor when he was building his practice. John’s focus can add value. Chuck hopes that by sharing his knowledge of the law John had grown tired of the routines of the old firm, and the “business of law,” he can help his new partner be and he wanted to continue to learn new areas of prac- more successful. n tice, so he decided to start anew with a new group. He remains in good health and he again enjoys meeting with 1. Sharon Epperson, What’s the magic number for your retirement savings? CNBC, www.cnbc.com/2016/02/11/whats-the-magic-number-for-your- old friends to inform them of his new situation. retirement-savings.html (Feb. 11, 2016). If firms ignore the interests of aging partners, there 2. Paul Campos, The collapsing economics of solo legal practice, Lawyers, is a strong likelihood that many talented senior lawyers Guns & Money, www.lawyersgunsmoneyblog.com/2015/05/the-collapsing- will move to other firms or join the ranks of sole prac- economics-of-solo-legal-practice (May 25, 2015). titioners with renewed energy and a greater sense of purpose. LS: The single greatest challenge to the profession is the number of senior lawyers who actually cannot or will not retire. Over the past 30 to 40 years, the number of solo and small firms has expanded to meet market demands, and today, many Are you feeling of these same practitioners find themselves unable to retire and still maintain anything even close to their current standard of living. overwhelmed? Most of the existing retirement/succession planning books The New York State Bar Association’s assume practitioners have ample resources for voluntary Lawyer Assistance Program can help. retirement to take place. Just surviving this transition into retirement is going to be the biggest challenge for many aging lawyers and the legal profession as a whole. I’d caution that we could be seeing large numbers of 70-year-olds who can’t sup- We understand the competition, port themselves if they retire. It could get ugly, especially with constant stress, and high pressure from “kids” graduating with a quarter million dollars expectations you face as a lawyer, in law school loans to pay back, who are willing to work for judge or law student. Sometimes much less than experienced counsel. the most difficult trials happen outside the court. Unmanaged Whether the baby boomers are planning on winding stress can lead to problems such as down a law practice, selling to a partner or third party, or substance abuse and depression. bringing in a protégé to transition the practice over time, it is our belief that bar associations can do much more NYSBA’s LAP offers free, to help bring senior lawyers together with younger, less confidential help. All LAP services are confidential and protected experienced lawyers to find ways to support these transi- under section 499 of the tion efforts. Judiciary Law. Case Study 3 – Growing from Within – Hope for the Future Chuck is a mid-career, solo practitioner who knows he wants out within six to 10 years from the law practice Call he has built over 27 years. Three years ago he made the 1.800.255.0569 decision to hire an associate – one of the scariest decisions of his professional life. This turned out to be one NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM of the best decisions of his professional life as it opened

NYSBA Journal | September 2017 | 21 Thinking of Going Solo? Be Prepared to Practice Law and Run a Business! By Deborah E. Kaminetzky

frequent mistake we lawyers make when starting – the records of what happened with your firm all year. At out on our own is that while we may know a lot that point, all they can do for you is calculate how much A about the practice of law, we don’t necessarily tax you owe and make suggestions for next year, and one know a lot about how to run a business. We may also fail of those suggestions will very likely be to check in with to recognize that a law practice is a business. No matter them toward the end of the following year when you can how good an attorney you are, without that recognition, still do something proactive. your fledgling practice is not going to thrive. For example, let’s say that you received a $10,000 This article is written for new solo attorneys, those retainer on a divorce in early December, and you depos- who are thinking of hanging out a shingle and those ited the retainer in your operating account. After you’ve who were dismayed when they saw their tax return for set up the file, the client calls and tells you they are get- the first time after beginning practice on their own. It is ting cold feet and don’t want to file or serve the spouse solely about your law firm’s business accounting – trust accounting is a whole other topic. Deborah E. Kaminetzky is the founding member of Kaminetzky & Associ- Many lawyers know that they should write a business ates, P.C. located in Cedarhurst, New York. Ms. Kaminetzky is a member plan prior to opening and, of course, obtain malpractice of the American Bar Association (General Practice, Solo and Small firm insurance. Hopefully you took into consideration the Division and Law Practice Management Sections), National Association For Community Mediation, New York State Bar Association (Estate, Fam- costs of rent, telephone, office supplies, etc. when figur- ily Law, ADR and General Practice Sections), The New York State Council ing out your business plan. However, there are some on Divorce Mediation, Nassau County Bar Association (where she served expenses you may not be able to predict, like how much as Chair of the Technology and Practice Management Committee, and your malpractice insurance will go up each year, so you is active in the Community Relations and Education Committee, and should definitely factor in a bit of a cushion. General and Solo Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky serves on the Committee on Law Practice Hire a CPA Management of the New York State Bar Association and has also been a My first suggestion is that if you do not have a CPA to speaker at their CLE’s. Ms. Kaminetzky has spoken to various groups on help you out, get one. Then, once you have one, don’t topics including matrimonial law, technology and social media use, fee treat them as merely a tax preparer, visiting them in Feb- arbitration and disaster preparedness for business. ruary and handing them what is essentially a done deal

22 | September 2017 | NYSBA Journal BUSINESS OF LAW just yet, but that you should feel free to hold on to the Know Your Numbers retainer until they make up their mind after the holidays. Suggestion number three is to run a profit-and-loss state- Let’s assume your firm is on a cash basis since you’re ment and a balance sheet monthly or to ask your book- a solo (larger firms and corporations usually use the keeper to create one for you. These come in handy for accrual basis). You may be thinking, swell, what a great several reasons: way to end the year with an extra $10,000! If you don’t 1. Dread making collection calls or going to network- understand what will happen to that $10,000, a call to ing events? One look at your numbers may be just your CPA may be in order. That $10,000 will result in the motivation you need. extra tax to you for the year. If the client calls back in Jan- 2. Didn’t realize your phone bill was so high? Call the uary after reconciling with their spouse and you refund provider now and see if you can renegotiate. the money in January, you will still owe taxes on that 3. Taking in way more than you realized? Maybe it’s $10,000. Granted, the following year it will be accounted time to give yourself a raise! (Call the CPA first). for, but you are still out the money in the meantime. A A profit-and-loss statement can tell you if particular call to your CPA would have filled you in, and you could expenses are getting out of control. You will also want have returned the retainer and told the client to call you two other documents – a balance sheet, and a general when they’re ready to proceed. ledger. The balance sheet shows what the business is worth. The general ledger contains every transaction in Invest in Bookkeeping double entry form, which means that for each transac- My second suggestion is that you either hire a bookkeeper tion, there are two entries. For example, should a client (if you want your books done the old-fashioned way), or pay a bill, the payment goes into the income column, and get a software program to keep the books for you (some the amount comes out of the liabilities column. This is sort of system for tracking and generating reports). I hap- how accountants record transactions according to gener- pen to use QuickBooks, but there are many others, such as ally accepted accounting principles. XERO and FreshBooks. There are several reasons for this Once you have been up and running for more than a suggestion. First of all, we lawyers tend to prefer doing year, you can run a comparative profit-and-loss statement legal work over administrative tasks, and we might be a comparing last year to the current year. This is especially bit slow in recording our financials when there is a motion helpful when making business decisions. After a while, to draft. Hiring a bookkeeper or obtaining a software pro- you may even start to see patterns that will help you plan gram that uploads your banking information automatical- for the future. Some attorneys realize that their work ly will give you a much better chance of having accurate is seasonal and that they have slow periods that can be records, and more important, will allow you to have your filled by offering a new practice area, or if they are satis- finger on the pulse of your business and to know what fied with the overall income, can be filled with a vacation your law practice is worth. What does that mean, you ask? or continuing legal education classes or seminars. Well, for instance, a profit-and-loss statement tells you Should you decide you want to get a loan for expan- whether your practice was profitable during a particular sion purposes, a banker may require some or all of the period of time such as a month, quarter, or year. A bal- aforementioned documents. For example, some banks ance sheet tells you what your practice is worth. Both will base a loan approval and interest rate on your are useful pieces of information. Considering how often income as shown on your return; others will use your we are bombarded with offers for software, equipment, balance sheet. A potential partner may want to see these and books that promise to make our lives easier and our documents as well. practice more successful, wouldn’t you want to base your Finally, if you get audited by the IRS, having an orga- decision on more than just whether you like the new nized system set up will go a long way toward reducing software? Wouldn’t you want to know whether you can the stress of the audit. Every single transaction will have afford to lay out the extra money? Imagine being able to been recorded and accounted for. You won’t have to go push a button and get a year-to-date profit-and-loss state- back and create your firm’s books; they will already be ment that tells you whether your practice is profitable. audit ready. Wouldn’t that information be good to have? With your bookkeeping in place, you will be in a much Without accurate, up-to-date information, many of better position to make decisions that will help your firm your business decisions will be made in a vacuum based thrive. Utilizing either a bookkeeper or a bookkeeping on your feelings, and then, at the end of the year, you will program should mean that some of your time formerly find out how you did. That is no way to run a profitable spent on administrative tasks should be freed up as well. business. What’s more, having a bookkeeper or book- Use the time wisely; continuing to read and learn about keeping software will ensure that when year-end does business concepts such as marketing, how to grow a com- come, your books will be ready to send over to your pany or manage effectively will help you turn your law accountant. You have enough stress running a practice – practice into a business that suits you. n your books should be the least of it.

NYSBA Journal | September 2017 | 23 Qualified Retirement Plan Designs for Law Firms By Andrew E. Roth

I. INTRODUCTION 50 by year-end may make an additional $6,000 “catch-up” A discussion on retirement can be a difficult one to start. 401(k) contribution, increasing their effective 401(k) limit Qualified Retirement Plans have become an important from $18,000 to $24,000. Both the $18,000 401(k) limit and part of the employee benefit programs offered by profes- the $6,000 “catch-up” limit are subject to annual cost-of- sional practices, but partners typically tend to focus on living increases. their clients rather than their retirement program. While In general, contributions to a 401(k) Plan are subject to retirement may indeed be years away, Qualified Retire- an annual nondiscrimination test, called the Actual Defer- ment Plans can provide practices with substantial tax ral Percentage Test (ADP Test). This numerical test sepa- savings today. Law firms, in particular, can use Quali- rates the eligible employees into two categories – Highly fied Retirement Plans to maximize retirement savings Compensated Employees (HCEs) and Non-Highly Com- for partners in a tax-efficient manner. Plan contributions pensated Employees (NHCEs) – and compares the aver- are immediately tax-deductible and enjoy tax-deferred age 401(k) contribution for each group. HCEs include any growth until they are withdrawn during retirement. Taxa- employee who (a) earned more than the compensation tion may be further delayed by partners and employees threshold for the prior year (earned more than $120,000 in alike by rolling the proceeds of the plan over to an indi- 2016 for the 2017 plan year) or (b) owned directly or by vidual retirement account (IRA). Plan assets also have the attribution more than 5 percent of the ownership interests unique benefit of being unreachable by creditors of the in the employer. When the HCEs contribute, on aver- individual plan participants as well as creditors of the age, significantly more than the NHCEs, the HCEs must firm, with very few exceptions. receive taxable refunds of those contributions. This article briefly discusses certain techniques law firms can use to maximize the substantial tax benefits of B. Safe Harbor 401(k) Plans Qualified Retirement Plans. Rather than risking potential taxable refunds each year, many professional employers have added a safe harbor II. DEFINED CONTRIBUTION PLANS component to their 401(k) plans. Safe harbor plans are A. 401(k) Plans in General exempt from the annual ADP Test, allowing the HCEs to Many law firms offer 401(k) Plans, technically known as maximize their 401(k) contributions without relying on Cash or Deferred Arrangements (CODAs). Employees of significant participation by NHCEs. The sponsor of a safe the firm, including partners, may elect to defer a portion of their salary or draw as a plan contribution. These con- Andrew E. Roth, J.D., LL.M. (taxation), is a partner of Danziger & Markhoff LLP, with over 30 years of experience as an ERISA attorney. He received his tributions are generally made pre-tax, where the funds Bachelor of Arts degree from New York University, his Juris Doctor degree grow and are not taxed until withdrawal at separation from Brooklyn Law School, and his LL.M. from New York University School from service or retirement. Alternatively, participants of Law. Andy is a frequent lecturer in the areas of pension, profit-sharing, may choose to forgo the immediate tax deferral in favor and employee benefits law. He has substantial experience in designing and of after-tax contributions that grow, and may be with- implementing qualified plans for business owners that maximize deductible drawn, tax free (known as a Roth 401(k)). contributions on their behalf. He is admitted to practice before the U.S. Tax Employees may choose to make traditional (pre-tax) Court and the Federal District Courts for the Southern and Eastern Districts 401(k) contributions, Roth (after-tax) 401(k) contributions of New York, and is a member of the New York State Bar Association. Andy or a combination of the two – provided that the total does can be reached at 914-948-1556. Special thanks to Mark T. Hamilton, Esq., not exceed the annual Internal Revenue Service (IRS) and Alex P. Nahoum, EA, MAAA, for their contributions. limit ($18,000 for 2017). Employees who have turned age

24 | September 2017 | NYSBA Journal BUSINESS OF LAW harbor plan must inform its employees that the firm will D. Top-Heavy Plans and Split Plan Design be making a contribution on their behalf for the upcom- As noted above, many law firms utilizing these types ing year. This is done through an annual notice that must of Qualified Retirement Plan designs tend to maximize be distributed at least 30 days prior to the beginning of contributions for the partners while limiting the outlay the plan year. for the staff. This strategy often results in the plan becom- There are two types of Safe Harbor plans: ing “top-heavy.” A top-heavy plan is a plan where at 1. Safe Harbor Non-Elective: The employer makes least 60 percent of the total balances belong to the firm’s a contribution equal to 3 percent of each eligible partners. When a law firm partner wants to contribute to employee’s compensation for the plan year. These a top-heavy plan, the firm must provide all eligible active contributions are made whether or not the employ- non-partner employees with a minimum allocation of 3 ee actually makes a 401(k) deferral for the year. The percent of their salary. This allocation must be provided Plan may provide that the 3 percent contribution to non-partner HCEs and NHCEs alike. This can get is allocated to all eligible employees or to eligible expensive when the firm employs highly paid profes- NHCEs only. sionals who are not partners, like law firm associates. The 2. Safe Harbor Match: The employer makes a match- firm is faced with the difficult decision to either make the ing contribution, generally equal to (a) 100 percent top-heavy minimum contribution or exclude these asso- of the employee’s first 3 percent of compensation ciates from the plan entirely (preventing them from even contributed as a 401(k) deferral, plus (b) 50 percent making their own 401(k) deferrals). of the employee’s next 2 percent of compensation An alternate approach would be to set up a plan solely contributed as a 401(k) deferral. This contribution for the associates and any other highly paid professionals. ends up capping out at 4 percent when the employ- The firm can then exclude them from the “primary” plan ee’s 401(k) deferral is at least 5 percent of their (the plan containing the partners and lower paid staff compensation for the year. Unlike the Safe Harbor employees) and avoid the top-heavy minimum contribu- Non-Elective contribution, an employee must make tion for associates and highly paid staff. As long as none a 401(k) contribution to be eligible to receive a Safe of the partners participate in this second “associates- Harbor Matching contribution. Therefore, if NHCE only” plan, no top-heavy minimum contributions would participation is very low, a Safe Harbor Match may be required in that plan. Participants in the “associates- be attractive. In our experience, however, NHCEs at only” plan are then able to make 401(k) contributions law firms tend to see the obvious benefit of partici- without any need for the firm to make any employer pation in such a plan and are more likely than some contribution on their behalf. This type of “Split Plan” other types of businesses to make the elective defer- design is very common with professional practices that rals necessary to receive the Safe Harbor Match. have non-owner or non-partner highly paid employees. Firms with a large number of employees can use a C. Profit Sharing 401(k) Plans different type of “Split Plan” design. Plans that provide In addition to 401(k) elective deferrals and employer safe for employer contributions are generally required to pro- harbor contributions, most professional employer plans vide a minimum contribution level for all eligible staff include a profit sharing feature. Profit sharing contribu- employees. As the number of staff employees increases, tions may be made by the employer on behalf of each this minimum contribution level can get more and more employee and can increase a partner’s total allocation expensive. While the partners may be receiving the under the plan to as much as $54,000 per year ($60,000 maximum contribution allocation under the plan, they if including the $6,000 401(k) “catch-up” contribution). may be on the hook for a considerable cost to the staff. In These additional profit sharing allocations can be skewed these situations, firms have split their plan in two. Plan 1 toward the partners in the plan through age-weighted benefits the partners of the firm and half the eligible staff nondiscrimination testing (called “new comparability” employees. Plan 2 also benefits the partners of the firm but testing). includes the other half of the eligible staff employees. The New comparability testing separates the employees result is a lower contribution level for the staff employees, into the same two categories as the ADP test: HCEs while allowing the partners to increase their percentage of and NHCEs. However, since new comparability is age the total contribution. This is not a design that necessar- weighted, higher paid employees who are closer to retire- ily works for all professional practices, since there are a ment can receive a much larger portion of the contribu- number of nondiscrimination testing requirements, but it tion while lower paid employees who are further from can be a cost-effective solution in the right circumstances. retirement receive a much smaller portion of the contribution. This allows the partners of the firm to receive III. DEFINED BENEFIT PLANS a maximum contribution allocation while limiting the A. Defined Benefit vs. Defined Contribution contributions going to the staff to a modest and manage- Through a combination of 401(k) deferrals, employer safe able number. harbor contributions and employer profit sharing contri-

NYSBA Journal | September 2017 | 25 butions, partners of a law firm can make annual deduct- C. Past Service Plans ible contributions up to the statutory limit of $54,000 Cash balance plans generally rely on level funding, where ($60,000 if over age 50 for 2017). However, Qualified the contribution amount is consistent from one year to the Retirement Plans are not limited to just defined contribu- next. This allows firms to rely on a consistent deductible tion plans. Defined benefit plans can yield tax-deductible contribution each year. On the other hand, it would typi- contributions far in excess of the $54,000 or $60,000 cally not allow a firm to make a significantly higher con- annual defined contribution limit. This is because the tax tribution in a year with a substantial windfall. Rather than code limitations on defined benefit plans apply to the setting up “level-funded” (also referred to as “accumula- amount an employee can withdraw at retirement, rather tion”) plans, firms seeing a one-time influx of cash may be than what an employee can fund today. For example, looking for alternative designs to shield that income. an individual age 62 who has participated in a defined Defined benefit plans and cash balance plans are benefit plan for at least 10 years may withdraw approxi- essentially funding toward a target in the future. There mately $2.7 million. Funding to that number could allow can be a number of different paths to get to that same tar- the firm to contribute and deduct over $200,000 per year get. For example, a law firm with a single employee wants for that individual. to design a plan that will result in a lump sum of $300,000 While defined contribution plans provide employees at retirement, which is three years away. A level-funded with an account balance that fluctuates with the market, plan design may yield an annual contribution of around defined benefit plans instead provide employees with a $100,000 per year over the three-year period, culminat- guaranteed benefit at retirement. Traditional defined ben- ing in the $300,000 goal. However, since that employee efit plans express these guaranteed benefits in the form is close enough to retirement, the plan may be designed of a life annuity payable at the plan’s normal retirement to allow the firm to be able to contribute $200,000 in the date. The larger the guaranteed benefit is under the ben- first year on their behalf with a modest $50,000 per year efit formula, the larger the tax-deductible contributions thereafter. Under the right circumstances, the contribu- may be to fund those benefits. tion could potentially amount to as much as $300,000 in the first year, with no further funding requirement over B. Cash Balance Plans the two succeeding years. Many law firms sponsor a type of defined benefit plan The exact funding requirements and deduction limits known as a cash balance plan. Cash balance plans often on these types of plans are based on the demographics allow partners to supplement their profit sharing 401(k) of each firm (and, in part, on plan experience), but this plan with an additional deductible contribution for them- example illustrates how this strategy could allow the selves at a modest increase in staff costs. A cash balance firm’s partners to shelter non-recurring (or “windfall”) plan is subject to all of the funding requirements and income from taxes without the need for a substantial cash operational and benefit limitations as a traditional defined commitment in future years. This can be very valuable benefit plan but looks and feels very similar to a defined for law firms whose income stream is unpredictable (e.g., contribution plan. Benefits in a cash balance plan are irregular contingent fee revenue at the conclusion of suc- expressed as a guaranteed account balance, increased each cessful litigation) but do not have the cash flow for level year by a “contribution credit” and an “interest credit.” funding over a period of years. Contribution credits may be a percentage of salary formula or a flat dollar formula (or a combination of both), IV. CONCLUSION and may be different for different classes of employees. Properly designed Qualified Retirement Plans can have Law firms may want to give one contribution credit for- substantial benefits for professional practices, and law mula to partners of the firm and another (usually much firms are no exception. Partners can shield substantial lower amount) to staff employees. Cash balance plans income from taxation through their working years and may even be designed to give different contribution enjoy the results of a tax-deferred “nest egg” upon retire- credit amounts for each individual partner. Contribution ment. These plans can also have the ancillary benefit of credits are usually fairly close if not equal to the actual functioning as a retention tool for valuable employees plan contributions funded by the firm. by using delayed plan eligibility and vesting provisions. Interest credits are given as a guaranteed rate of return Often, law firms and other professional practices already by the employer. These are generally either a flat rate or maintain Qualified Retirement Plans, but do not take a rate indexed on a bond yield (like the return on the advantage of some of the unique design options avail- 30-Year Treasury). If the plan assets consistently under- able to them. Or, plans are set up but not adjusted as the perform the guaranteed rate the employer may need to needs of the firm change. As the firm evolves, so should make additional contributions to compensate. However, its retirement program. Law firms should look to review if plan assets consistently outperform the guaranteed their current plan design with a pension expert to ensure rate, employers may be able to reduce their contributions they have the best fitting design for the firm as well as its in subsequent years. partners. n

26 | September 2017 | NYSBA Journal Four Ways to Give Clients What They Want on Your LinkedIn Profile By Allison C. Shields

his spring, Greentarget and Zeughauser Group percent said they had used LinkedIn for professional released its 2017 State of Digital Content Marketing reasons within the past week, up from 68 percent in 2015. TSurvey report, based on survey responses from in- The chart below left shows how in-house counsel use house counsel as well as law firm CMOs and marketers. LinkedIn generally. When asked how they used LinkedIn The survey revealed that when asked what sources were specifically with regard to outside counsel, 40 percent of important when researching lawyers or law firms for in-house counsel responded that they use LinkedIn to potential hire, 71 percent said LinkedIn. Seventy-three research potential outside counsel, 46 percent use Linke- dIn to contact and/or build connections with outside counsel, and 33 percent use it to access content outside counsel pushes out. According to the survey, when reviewing LinkedIn profiles of outside counsel, 86 percent of in-house coun-

Allison C. Shields, Esq. is the President of Legal Ease Consulting, Inc., which provides productivity, practice management, marketing, business development and social media training, coaching and consulting services for lawyers and law firms nationwide. She is a co-author of How to Do More in Less Time: The Complete Guide to Increasing Your Productivity and Improving Your Bottom Line, published by the American Bar Associa- tion Law Practice Division, and is a frequent lecturer on practice management topics.

NYSBA Journal | September 2017 | 27 sel focus primarily on “experience and relevant client rience sections of your profile. Use bullet points and lists matters” more than any other criteria. Only 29 percent to break up long content. pay the most attention to shared articles, updates and Show, don’t tell. Instead of saying that you have comments. “extensive experience” in your area of practice, that you The survey indicates that law firm CMOs and market- are “a respected member of the bar,” or that you are ers recognize the importance of LinkedIn. When asked “skilled at” something, demonstrate those qualities by whether they provided training for their lawyers on talking about the work that you do and the clients that using LinkedIn effectively, only 2 percent responded that you represent. they did not offer LinkedIn training and did not plan to do so. Another 7 percent did not currently offer training Pack a Punch with Your Professional Headline but did plan to offer it in the future; 41 percent offer infor- Your professional headline is the line that appears under mal training, and 50 percent offer formalized training on your name on LinkedIn. When users first encounter you LinkedIn to their lawyers. on LinkedIn, they may not be looking at your profile; But law firm marketers may be emphasizing the they may see you as a suggestion in People You May wrong aspects of LinkedIn in their training. According to Know on their network page, in search results, in a list the survey, those that do offer training emphasize shared of connections, or in a LinkedIn group. In many of those updates, articles and comments, and quality of connec- cases, all they will see is your photo, name, and your tions. Less than half of the firms offering LinkedIn train- professional headline: ing focus on what in-house counsel finds most important: experience and relevant client matters.

You want to make sure that your professional headline communicates enough information about you to convince users to click on your name and view your full profile.

Below are four tips you can use to showcase the information about experience and relevant client matters that in-house counsel (and likely other potential clients and As a result, you want to make sure that your profes- referral sources who are professionals or business people) sional headline communicates enough information about want to see on a lawyer’s LinkedIn profile. you to convince users to click on your name and view your full profile. Aim for Your Audience The professional headline is a valuable tool to commu- Whether you are targeting in-house counsel, business nicate your area of practice, your knowledge and experi- owners, or divorced moms, your LinkedIn profile should ence, and to distinguish yourself from other lawyers. be written in a way that will connect with that audience. Don’t limit your headline just to your title or even your Talk about the legal and business issues your clients con- title and firm name (“Partner at Flintstone and Rubble, front, and use the words they use to describe them. P.C.”); if a user is not familiar with your firm, this infor- Using keywords that your audience uses will increase mation may not be enough even to communicate that you your visibility among your target audience and make it are a lawyer (Flintstone and Rubble could be an account- more likely that your profile will be returned in search ing firm, for example). results conducted by your audience. Include your firm’s name and your title, but add a Stay away from legalese and jargon, unless you are description of your practice areas or clients keeping your sure that your audience knows, understands, and uses audience in mind. Utilize the 120 characters that LinkedIn that jargon regularly. Write as if you are speaking directly makes available. to your audience. Think more like a journalist and less For example, “Partner at Scooby and Shaggy, LLP, like a legal brief writer; incorporate who, what, where, Management-side Labor and Employment Law Trial why, and when, particularly in your summary and expe- Attorney,” “Elder Law and Estate Planning Associate at Seinfeld & Costanza,” or “Partner, Scott, Schrute, Halp-

28 | September 2017 | NYSBA Journal BUSINESS OF LAW ert, Beesly & Howard, PC, Risk Management and Legal for each position. Instead of just listing the places you Malpractice Attorney.” worked and your titles, or copying and pasting your resume or firm bio, use the available space to highlight Strengthen Your Summary what clients and referral sources want to know. Include The summary appears at the bottom of the main info examples or case studies; list important reported deci- box at the top of your profile. Although many lawyers sions and/or representative clients. either skip over this section or give it short shrift, a good, You can also add media (images, documents, presen- complete profile should include a strong summary. It is tations, or video) to the summary and experience (and a good opportunity to include keywords in your profile education, for law students or recent grads) sections of and to highlight your most relevant experience and client your profile. Including presentations, checklists, articles, matters, whether past or current. video, etc., in your LinkedIn profile demonstrates your The summary should give a good impression of what knowledge and experience much better than anything you do now, who you do it for, and how you do it, but you you say about yourself on your profile. should also reference any particularly pertinent prior To add media to your profile, on the “Edit Profile” experience and how it helped you to get where you are. screen, click on the pencil icon in the section where you Talk about your approach, the kinds of clients you have want to add media. Scroll until you see “Media,” and worked with, and specific cases or matters that might click either the “Upload” or “Link to Media” buttons. provide good insight for potential clients or referral Uploading the media to your profile will allow readers to sources about what you do. see that content – for example, to view the presentation or For example, if Chuck Rhoads entered private prac- video directly within your LinkedIn profile itself. tice, his summary might say something like: Focusing on these four tips should provide potential I represent hedge fund managers, business owners, clients and referral sources with the quality informa- and financial professionals in business, securities, and tion they are looking for on LinkedIn. If you are a more financial litigation matters, including claims of securi- advanced user, you can move on to adding profile sec- ties fraud. I practice in all state courts in the New York tions, such as certifications, publications, projects (which metropolitan area, as well as the federal courts of the can be used to showcase presentations or important deci- Southern and Eastern Districts of New York. In my sions), honors and awards, organizations or volunteer 20 years in practice as the United States Attorney for the Southern District of New York, I tried over 1,000 work, incorporating skills and seeking recommendations cases, including the landmark case United States v. Axe from clients or colleagues to provide even more value to Capital. . . . those who visit your LinkedIn profile. n

Your summary can include up to 2,000 characters, but with the new interface released in early 2017, only the first 200 characters or so will appear when users view your profile unless they click the “See more” link. As a result, those first 200 characters are extremely important; if they don’t grab a visitor’s attention, that visitor may never see the rest of your summary and may never scroll down to see the rest of your profile. Make sure you include the most important information and keywords in those first 200 characters. A fitting and lasting tribute to a deceased lawyer The summary is also a good place to include informa- or loved one can be made through a memorial tion that does not fit neatly into other sections of your contribution to The New York Bar Foundation… LinkedIn profile. For example, you may want to include This meaningful gesture on the part of friends and the courts or jurisdictions in which you are admitted to associates will be appreciated by the family of the de- practice, as well as volunteer or charitable work, publi- ceased. The family will be notified that a contribution has been made and by whom, although the contribu- cations, speaking engagements, or other activities that tion amount will not be specified. establish your industry knowledge, commitment to the Memorial contributions are listed in the Foundation community or professional excellence. Memorial Book at the New York Bar Center in Albany. The summary is often the best place on your profile to Inscribed bronze plaques are also available to be dis- played in the distinguished Memorial Hall. include the “Attorney Advertising” disclaimer. To make your contribution call The Foundation at Emphasize Your Experience (518) 487-5650 or visit our website at www.tnybf.org The experience section is another area of your LinkedIn Lawyers caring. Lawyers sharing. profile that should (but often does not) contain more Around the Corner and Around the State. than just cursory information. You have 2,000 characters

NYSBA Journal | September 2017 | 29 Ensuring Privilege of a Pre-Breach Cybersecurity Assessment By Erik B. Weinick

hile data breaches at Fortune 500 companies Unfortunately, that seemingly reasonable precaution and high profile organizations grab the head- may have an unintended consequence when a subse- Wlines, organizations of all sizes and types must quent cyberbreach occurs and results in contentious take reasonable steps to safeguard the data they obtain, litigation. In that event – and unfortunately, the question manage and transfer. After all, cybercriminals are looking of a cyberbreach is one of when, not if – any conscientious to make money as easily as possible and will often target plaintiff’s attorney will request production of documents the low hanging fruit offered by ill-prepared smaller relating to, or concerning, PBAs. In particular, the plain- companies. As a result, one prudent step organizations of all sizes may wish to consider is performing proactive Erik B. Weinick co-founded the Privacy & Cybersecurity practice group at pre-breach assessments (PBAs) of not only their hard- Otterbourg P.C., which counsels firm clients on privacy and cybersecurity ware and software systems, but of their organizational matters. Mr. Weinick is also a member of Otterbourg’s litigation practice systems and policies. In fact, for some organizations, such group, which regularly represents a diverse group of clients before state as those subject to regulation by New York’s Department and federal courts, regulatory authorities, and alternative dispute resolu- of Financial Services, conducting a PBA may be a legal tion tribunals. In addition, he is certified as a Privacy and Cybersecurity requirement.1 Regardless, conducting a PBA is a prudent Professional (CIPP-US) by the International Association of Privacy Profes- business practice that many consultants recommend sionals (IAPP). doing through legal counsel.

30 | September 2017 | NYSBA Journal BUSINESS OF LAW tiff’s attorney will seek discovery of any analysis of short- leged attorney-client communications. In Kovel, Judge comings or areas for recommended improvements to the Friendly ruled that this privilege can attach to reports breached organization’s cybersecurity systems. Given prepared by third parties at the request of the attorney this likelihood, are there ways for organizations to obtain or the client, where the purpose of the report is to put the benefit of PBAs, while simultaneously reducing the information obtained from the client into a usable form.7 possibility that the PBA itself will become a roadmap for Just as Judge Friendly analogized an accountant to a adversaries in later litigation?2 translator putting the client’s information into language While the specific question of whether or not PBAs that an attorney could effectively utilize, so too would are privileged has not yet been the subject of published a CE “translate” the technical parameters of the client’s court decisions, analysis of the attorney-client privilege hardware and software systems into language that the more generally teaches that PBAs may be structured in a outside counsel could use to determine the client’s com- manner so as to allow defense counsel for an organization pliance with applicable law, regulations and contractual facing a lawsuit over a cyberbreach to argue that the PBA obligations. Of course, basic and traditional procedures in question is protected by the attorney-client privilege. for maintaining the attorney-client privilege must still be In the absence of specific judicial guidance, organizations strictly followed. These well-established conditions may should take two primary steps before proceeding with a be found in the Second Circuit’s decision in Brennan Ctr. PBA in order to best position themselves to argue that the for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, PBA was privileged. where the court held that “[t]he attorney-client privilege First, the organization should retain outside counsel protects communications (1) between a client and his or for the express purpose of conducting the PBA. Counsel’s her attorney (2) that are intended to be, and in fact were, role will be to ensure the organization’s compliance with kept confidential (3) for the purpose of obtaining or pro- applicable laws, regulations, current policies, and con- viding legal assistance.”8 tractual obligations. Also instructive is United States v. Schwimmer, where Second, outside counsel should, in turn, retain an out- the Second Circuit held that the attorney-client privilege side cybersecurity expert or firm (the CE), rather than the may cover “communications made to certain agents of an organization retaining the CE directly. The CE will assist attorney . . . hired to assist in the rendition of legal ser- counsel in determining the organization’s compliance vices.”9 Specifically, the court determined that communi- with applicable technical standards, as well as identifying cations from a client to an accountant retained by counsel areas for improved compliance. for a co-defendant with whom he held a joint-defense and These recommended procedures have their basis in common interest privilege could be considered to be priv- the Supreme Court’s seminal case on attorney-client ileged as the information was being provided in order to privilege, Upjohn Co. v. United States.3 There, after noting assist both counsel in the provision of legal advice.10 that “[t]he attorney-client privilege is the oldest of the Organizations seeking to conduct a privileged PBA privileges for confidential communications known to the should resist the temptation to have it carried out by in- common law,” the Supreme Court upheld the privilege’s house legal and in-house technical personnel for several applicability to counsel’s communications with retained reasons. From a non-legal perspective, it is best to retain experts whose role is to assist counsel in providing legal an outside CE because the in-house team, even if it counts advice requested by clients.4 “[T]he privilege exists to among its members a Chief Information Security Officer protect not only the giving of professional advice to those (CISO), may not have: (i) as extensive and specific experi- who can act on it but also the giving of information to ence and expertise in preventing and correcting cyber- the lawyer to enable him to give sound and informed security breaches (especially if the CISO was appointed advice.”5 In United States v. Kovel, the “giving of infor- merely as a “stop gap” measure in an attempt to comply mation to the lawyer” addressed in Upjohn was held with regulatory requirements); (ii) the necessary detach- to include information obtained from the client by an ment and objectivity to be critical of the systems they may outside consultant retained by the client’s lawyer, which have helped to build, and which they are responsible for is in turn “translated” for the lawyer so that the lawyer maintaining and monitoring on a daily basis; and (iii) the may provide legal advice.6 Thus, a PBA may arguably be time to stay current on the latest cybersecurity issues and privileged if it is the result of: (i) a request to counsel for problems confronting organizations with similar cyberse- legal advice; and (ii) legal counsel’s retention of an agent curity concerns.11 with technical expertise to assist it in the provision of The same considerations are valid when weighing legal advice to the client. the use of in-house counsel versus outside counsel. First, Seen through the prism of Kovel and its progeny, it especially in smaller organizations, in-house counsel may follows that if a client requests outside counsel to con- lack specific expertise and experience in conducting a duct a PBA, the communications between the client and PBA, and intra-company relationships may impact the counsel, as well as counsel’s communications with its level of objectivity and critical thinking, which are cru- retained technical expert, would be considered privi- cial to the performance of a worthwhile PBA. Moreover,

NYSBA Journal | September 2017 | 31 courts are apt to deny application of the attorney-client ment that the consultant is “translating” for the attorney privilege in instances where: (i) an in-house counsel is so as to allow the attorney to provide legal advice. merely copied on non-legal communications in the hopes In Dukes v. Wal-Mart Stores, Inc., the court was asked that it will transform into a request for, or the provision to determine whether defendant Wal-Mart could con- of, legal advice; and/or (ii) the in-house attorney pro- tinue to assert attorney-client privilege protection for an vides advice that is more business in nature than legal.12 extensive memo prepared by Wal-Mart’s outside counsel These obstacles to privilege may fall away when outside prior to the inception of the litigation and later leaked to counsel is retained for the specific purpose of a PBA. The New York Times.17 That memo contained the results In the absence of specific published judicial analysis of counsel’s investigation of, and opinions regarding, the of whether PBAs are privileged, and in an effort to move same labor practices that were at the center of the subse- past the more general analysis provided by courts such quent litigation. The court recognized the presumption of as those in Upjohn, Kovel and Schwimmer, it is helpful privilege for the memo and went on to hold that because to analogize to other compliance assessments that rou- the disclosure of the memo had not been authorized, Wal- tinely employ both outside counsel and outside techni- Mart had not waived the attendant privilege.18 cal experts equivalent to CEs, serving as an agent of the Albeit in the context of a post-incident investigation, attorney. Courts have regularly applied the attorney- the court in U.S. v. ISS Marine Services, Inc., rejected a client privilege when a client is truly seeking legal advice claimed privilege where outside counsel had been pur- and is not merely employing in-house or even outside posely excluded from the investigation process by the counsel as window dressing, and when that counsel, in client.19 There, the defendant was a government con- turn, retains a necessary expert agent. In such instances, tractor providing support services in the Middle East. the communications and resulting report were privi- Two employees attended a workshop and conducted an leged and undiscoverable by plaintiff’s counsel in later inspection of corporate facilities in Dubai and Bahrain. litigation concerning the topic of the report. As these While at those locations, the employees noticed prac- courts have held, the attorney-client privilege “undeni- tices that they believed exposed the company to liabil- ably extends to communications with ‘one employed to ity for fraudulent conduct. They reported this conduct assist the lawyer in the rendition of professional legal to their superiors. In response, a senior vice president services.’”13 contacted outside counsel. Outside counsel prepared a For example, in a 2013 Ohio case, communications draft engagement letter to cover the conduct of an inter- between in-house counsel and an outside environmental nal investigation. The company ultimately rejected the consulting and services firm were found to be privileged engagement and conducted the investigation on its own, because they were “for the specific purpose of explaining even after being warned that it would not be protected by or interpreting technical data so as to allow counsel to the attorney-client privilege.20 During subsequent litiga- provide legal advice” to the party and, as such, are pro- tion, the government requested the results of that inves- tected by the attorney-client privilege.14 tigation and report. The company resisted production on A further example in the context of environmental the grounds that outside counsel had eventually received actions is found in the oft-cited U.S. Postal Service v. Phelps and consulted on the report. The court rejected the Dodge Refining Corp.15 That litigation centered on the claimed privilege, finding it to be premised on the gim- defendant’s alleged failure to fulfill certain contractual mick of excluding outside “counsel from conducting the obligations concerning the environmental status of the internal investigation but retain[ing] them in a watered- property it had sold to the plaintiff. The court overruled down capacity to ‘consult’ on the investigation in order a claim of attorney-client privilege for communications to cloak the investigation with privilege.”21 The lesson between outside counsel and the engineering firm that here is obvious: counsel must truly be directing a process had been hired years earlier to oversee remedial environ- whose primary aim is the provision of legal advice to the mental work supervised by a state environmental agency, client. In the context of a PBA, the strongest argument because the engineers were not employed by counsel spe- for the applicability of the attorney-client privilege will cifically to assist them in rendering legal advice, but rath- be where outside counsel and a CE were retained for the er were retained directly by the defendants to formulate specific purpose of conducting the PBA, actually do con- and implement a remediation plan acceptable to the gov- duct the PBA, and are not merely window dressing for ernmental oversight agency.16 Critically, the consultant’s the organization conducting the assessment itself. work was not based upon information obtained directly Consistent analyses and outcomes also appear in from the client and put into usable form for counsel, the context of tax disputes. For example, in Cottillion v. but rather, was based upon information obtained by the United Ref. Co., a communication between members of a consultant from other sources. In contrast, the structure corporation’s retirement committee, outside counsel and recommended by this article for conducting PBAs has the the corporation’s actuarial consultant regarding IRS and consultant retained by the attorney obtaining information ERISA issues was deemed privileged, because the consul- directly from the ultimate client which bolsters the argu- tant’s involvement was for the purpose of assisting with

32 | September 2017 | NYSBA Journal BUSINESS OF LAW the provision of legal advice.22 By contrast, however, in attorney, or an attorney is copied on a memorandum, does not mean that the United States v. Richey, the court rejected a claim of privi- communication is necessarily privileged” and the “multi-faceted duties [of in-house counsel] that go beyond traditional tasks performed by lawyers” lege where the retained consultant had performed a valu- necessitates a close examination of whether the in-house attorney is provid- ation in order to determine the amount of a charitable tax ing legal versus business advice); OneBeacon Ins. Co. v. Forman Int’l, Ltd., deduction that could be taken, as opposed to assisting No. 04 Civ. 2271(RWS), 2006 WL 3771010, at *5–6 (S.D.N.Y. Dec. 15, 2006) (“[i]nvestigatory reports and materials are not protected by the attorney-client with the provision of legal advice as to the validity of that privilege or the work-product doctrine merely because they are provided to, deduction.23 Clearly, courts are more inclined to uphold a or prepared by, counsel.”). claim of privilege where the outside counsel is directing a 13. United States v. Singhal, 842 F. Supp. 2d 1, 5 (D.D.C. 2011) (citing Linde process whose goal is to provide legal advice. Thomson v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C. Cir. 1993) and Cal- vin Klein Trademark Trust v. Wachner, 124 F. Supp. 2d 207, 209 (S.D.N.Y. 2000) Companies that wish to gird themselves against the (“attorney-client privilege may be preserved even when confidential commu- ever-present threat of cyberattacks should engage out- nications are disclosed to a third party – such as an investment banker – as side counsel to provide them with legal advice on their long as the third party is serving an ‘interpretive function’ to aid the lawyer in helping the client”)). compliance with the laws, regulations and contractual 14. In re Behr Dayton Thermal Prods., LLC, 298 F.R.D. 369, 374 (S.D. Ohio 2013) obligations that apply to them in the context of data pro- (citing Graff v. Haverhill N. Coke Co., No. 1:09-CV-670, 2012 WL 5495514, at *9 tection. Companies which rely solely on in-house legal (S.D. Ohio Nov. 13, 2012)). and technical expertise are vulnerable to having courts 15. 852 F. Supp. 156 (E.D.N.Y. 1994). reject their claims that their PBAs were privileged. On 16. Id. at 161. the other hand, organizations which request that outside 17. No. 01-cv-2252 CRB (JSC), 2013 WL 1282892 (N.D. Cal. Mar. 26, 2013). counsel direct a PBA with the assistance of CEs and 18. Id. at *5–9. advise the organization on compliance, with applicable 19. 905 F. Supp. 2d 121 (D.D.C. 2012). legal obligations, will be better positioned to argue that 20. Id. at 124–25. the results of the PBA should remain privileged in the 21. Id. at 129. event of litigation following the breach that is likely to 22. 279 F.R.D. 290, 304–05 (W.D. Pa. 2011) (citing SmithKline Beecham Corp. v. be visited upon even the most cyber-savvy and vigilant Apotex Corp., 232 F.R.D. 467, 476–77 (E.D. Pa. 2005) and In re CV Therapeutics, of organizations. n Inc. Sec. Litig., No. C-03-3709 SI (EMC), 2006 WL 1699536, at *6 (N.D. Cal. June 16, 2006), as clarified on reconsideration, No. C-03-3709 SI (EMC), 2006 WL 1. See 23 N.Y.C.R.R. 500 (requiring covered entities to “assess [their] specific 2585038 (N.D. Cal. Aug. 30, 2006)). risk profile[s] and design a program that addresses its risks in a robust fash- 23. 632 F.3d 559, 566–67 (9th Cir. 2011). ion.”). 2. By contrast, post-breach investigations will almost certainly be conducted in “anticipation of litigation,” making the application of privilege that much more critical. As a result, this article does not address post-breach investigations. See Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 54 (S.D.N.Y. 2000). 3. 449 U.S. 383, 389 (1981). 4. Id. at 389. 5. Id. at 390. 6. See United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), discussed infra. 7. Id. at 922–23. 8. 697 F.3d 184, 207 (2d Cir. 2012) (citing United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011)). 9. 892 F.2d 237, 243 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1991). 10. Id. at 244. See also Scott v. Chipotle Mexican Grill, Inc., 103 F. Supp. 3d 542, 547 (S.D.N.Y. 2015) (under Kovel and its progeny, “an attorney’s agent’s communications do not fall under the attorney-client privilege unless she is communicating with the attorney in confidence and in a way that is necessary for the attorney to render legal advice to the client.”); 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 503(a)(3)[01] at 503-31–38 (1993) (application of privilege in Kovel recognized as extending to representatives of the attorney, such as accountants; administrative practitioners not admitted to the bar; and non-testifying experts). 11. “The biggest and most common mistake when it comes to evaluating cyber security is to ask the internal IT department. It is obvious that the people responsible for maintaining cyber security will not question their work by pointing out possible vulnerabilities. Therefore, the assessment of cyber security should at least be undertaken by bringing in someone from another department of the company or, often even better, by bringing in outside experts.” Roundtable: Cyber Security, Financier Worldwide Magazine (January 2017), https://www.financierworldwide.com/roundtable-cybersecurity-jan17/#.WJt3fG8rIdU. 12. See, e.g., U.S. Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156, 160 (E.D.N.Y. 1994) (“the mere fact that a communication is made directly to an

NYSBA Journal | September 2017 | 33 BURDEN OF PROOF BY DAVID PAUL HOROWITZ David Paul Horowitz ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over 26 years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee, and is now affiliated with JAMS. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and lectured on that topic, on behalf of the New York State Board of Law Examiners, to candidates for the July 2016 bar exam. He serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee.

Groundhog Day

Introduction A Modern Day Snipe Hunt: in the course of writing this column This month’s edition of the Journal is Locating All Applicable Rules I’ve come across a set of rules I never devoted to law practice management, A wonderful American idiom is “snipe knew existed (I am too embarrassed to and it occurred to me that the rules hunt,” defined this way: say which one). governing civil litigation in New York 1. An elaborate practical joke in Add to the mix pre-printed Pre- State, the Civil Practice Law & Rules which an unsuspecting person liminary Conference and Compliance (CPLR), generally organized chrono- takes part in a bogus hunt for a Conference forms incorporating direc- logically to follow the life of a civil snipe, typically being left alone in tives which may or may not dovetail action, provide a useful framework for the dark with instructions not to with the various rules, judges’ unwrit- managing litigation. Unfortunately, its move until the snipe appears. ten rules, and “local practices,” and utility as a litigation roadmap is great- 2. A futile search or endeavor.4 you have a situation where even very ly diminished because so many of the To embark on the quest to know experienced litigators can have trouble rules governing civil practice reside all applicable rules of New York civil identifying every possible rule that can outside the CPLR, and the CPLR plays practice is to embark on a snipe hunt. impact a case. an ever diminishing role in regulating To successfully navigate a straightfor- If your case is in a specialized court, New York’s civil practice. ward single-plaintiff/single-defendant for example the Commercial Division, Complicating matters is a signifi- Supreme Court action requires utiliz- you will also have to be aware of the cant roadblock to utilizing those other ing, in addition to the CPLR, the Rules rules of practice in that court. The rules: you have to find them first.1 of the Chief Judge,5 Rules of the Chief Commercial Division Rules are quite Locating and integrating all of the Administrative Judge,6 Uniform Rules extensive, affect many aspects of liti- governing rules outside the CPLR has of the Trial Courts,7 Uniform Rules gation in ways that are often at odds become increasingly difficult in the 54 for Jury Selection and Deliberation,8 with the CPLR, and are constantly years since the CPLR was enacted.2 Uniform Rules for the Conduct of evolving.16 For cases assigned to the Sadly, an excellent guide to these rules, Depositions,9 Judicial District Rules,10 Commercial Division there are state- Zimmerman’s Research Guide, pre- County Rules,11 and Individual Jus- wide rules,17 county rules applicable pared by Andy Zimmerman, Manager tices’ Rules.12 If there is an appeal, add to Commercial Division cases18 and, of of Library Services for the D.C. office in the rules of the relevant Appellate course, individual justices’ rules.19 of Morgan Lewis & Bockius, is no lon- Department,13 and perhaps even those So it would come as no surprise if ger available.3 of the Court of Appeals.14 Oh, and it a prominent authority on civil practice So, for an attorney sallying forth in might not be a bad idea to be familiar described New York’s civil practice a New York civil action, using only the with New York’s Rules of Profession- rules this way: CPLR is akin to planning a summer al Conduct.15 Notwithstanding that I We have been too long cowed by road trip using a map containing half have taught New York Practice for the [Rules], by a monster of com- the roads and half the towns in the more than 15 years, I am certain of one plexity created by us and for us, state. You may get where you want to thing: I have missed a few of the appli- so that no one dares – except on go. Then again, you may not. cable rules in my summary above, and an ad hoc basis – reexamine this

34 | September 2017 | NYSBA Journal creature that controls so much of tion skills – essentially, it tests the NYLC consists of approximately what we do. fundamental knowledge and law- 15 hours of videotaped lectures yering skills that are needed to with embedded questions which It’s Déjà Vu All Over Again begin the practice of law. The UBE must be answered correctly before New York’s civil practice rules have is uniformly administered, grad- an applicant can continue viewing been described that way, and while ed and scored, and it results in a the lecture. Applicants are expect- the description is apt for our current score that can then be transferred ed to watch, in good faith, each state of affairs, the quote is not about to other UBE jurisdictions.20 video in its entirety. The time spent today’s state of affairs, or even about So, the UBE is all about general legal watching each video in the NYLC the CPLR. It is from an article in this principles and while, as Jerry Seinfeld will be electronically audited by publication from 1958 lamenting the would say, “not that there’s anything the Board.22 state of the Civil Practice Act, the New wrong with that,” what is missing, of Hardly the traditional weekly three, York Code of Civil Procedure which course, is any testing of any aspect of four, or even six-hour doctrinal New preceded, and was replaced by, the New York law including, but not lim- York Practice class traditionally offered CPLR in 1963. The article was authored ited to, the rules of civil practice. in New York law schools. by then-Columbia Law School Profes- sor of Law, now Eastern District of New York United States District Court To embark on the quest to know all applicable Judge, Jack B. Weinstein. rules of New York civil practice is to embark Today, Judge Weinstein might feel on a snipe hunt. a bit like Pittsburgh weatherman Phil Connors reporting on Groundhog Day Not that New York law was entirely Two consequences of New York’s from Punxsutawney, Pennsylvania: It’s forgotten. As a condition for admission adoption of the UBE, certainly unin- 6 a.m. and civil practitioners are, once to the New York Bar, UBE exam takers tended and perhaps unanticipated, again, cowed by a monster of complex- are required to take the online New almost certainly guarantee that attor- ity. York Law Course and pass an online, neys admitted to practice in New York multiple-choice test: under the UBE will most likely have no Could Things Get Any Worse? Upon recommendation of the exposure to New York Practice, other Learning the rules of civil practice in Advisory Committee on the Uni- than the New York Law Course, before New York is an inherently difficult form Bar Examination (UBE), the their admission to the New York Bar. task. Compounding this difficulty, and New York Court of Appeals adopt- The first consequence is that law combining with it in what may be a ed the UBE effective with the July students in their final year of law “perfect storm” battering civil prac- 2016 administration of the New school recognize that New York no tice in New York courts, is the recent York State bar examination. The longer tests, inter alia, New York Prac- change to the New York State Bar Advisory Committee also recom- tice. Consequently, attendance in New Examination. mended, and the Court of Appeals York Practice classes in New York law In July of 2016, those sitting for the adopted, a requirement that appli- schools throughout the state has plum- bar examination in New York took, for cants for admission in New York meted. Anecdotally, attendance in the first time, the Uniform Bar Exam be required to complete an online New York Practice in some law schools (UBE) in place of the traditional New course on New York law and take has declined by as much as 90 percent. York Bar Examination. The UBE is and pass an online examination on My own New York Practice Seminar described by the New York State Board New York law, as a requirement for & Workshop at Columbia Law School of Law Examiners this way: admission.21 has not run for the last two years due The Uniform Bar Examination What is the New York Law Course? to a lack of enrollment.23 (UBE) is a high quality, uniform The NYLC is an online, on demand The virtual demise of New York battery of tests that are adminis- course on important and unique Practice as an “unofficial” required tered contemporaneously in every aspects of New York law in the course in New York law schools will other jurisdiction that has adopted subjects of Administrative Law, have an impact beyond simply a lack the UBE. It consists of the Mul- Business Relationships, Civil of familiarity with the rules. One of the tistate Bar Examination (MBE), Practice and Procedure, Conflict deans of New York Practice, Profes- the Multistate Performance Test of Laws, Contracts, Criminal Law sor Vincent C. Alexander at St. John’s (MPT), and the Multistate Essay and Procedure, Evidence, Matri- University School of Law, summarized Examination (MEE). monial and Family Law, Profes- numerous benefits inherent in taking The UBE tests knowledge of gen- sional Responsibility, Real Prop- New York Practice: eral principles of law, legal analysis erty, Torts and Tort Damages, First and foremost, teaching stu- and reasoning, and communica- and Trusts, Wills and Estates. The dents in an advanced civil proce-

NYSBA Journal | September 2017 | 35 dure course that concentrates on itative casebook arise in a context 1. Finding the CPLR is not difficult, and it is the CPLR helps them prepare for that facilitates a quick review of readily available, online and for free, so that lay- persons with unfilled leisure time can peruse the 24 civil litigation in all of the state major substantive concepts. rules. Of course free is not always the bargain it courts of New York. As we all seems. I found a version of the CPLR available know, New York has numerous The second consequence of the online for free at newyorkcplr.com. I clicked on the link for article 31 (Disclosure) and clicked on civil courts of original subject adoption of the UBE is that bar review the first link, for CPLR 3101 (Scope of disclosure), matter jurisdiction – a distressing courses, a necessary evil for all hop- and was taken to . . . CPLR 3201 (Confession of feature for students and litigants ing to regurgitate years of law school judgment before default on certain installment contracts invalid). alike. What is sometimes over- study over the course of a two-day 2. A partial listing of where rules may be found looked, however, is that the CPLR examination, no longer cover New can be found at https://cardozo.yu.edu/finding- governs the procedure in all of York Practice. Why? Because it is no court-rules. those courts unless some specific longer tested and, therefore, is of no 3. A farewell to Zimmerman’s Research Guide can be found at https://www.lexis- statute says otherwise. Even for more utility to a bar examination test- nexis.com/infopro/keeping-current/b/weblog/ students who intend to practice taker than French poetry, calculus, or archive/2015/12/10/farewell-to-zimmerman-s- law in other states, an in-depth knitting. research-guide.aspx. study of the CPLR will enhance Since nearly every bar exam test- 4. http://www.thefreedictionary.com/ snipe+hunt. their ability to cope with compli- taker enrolls in a bar review course, 5. http://www.nycourts.gov/rules/chiefjudge/ cated procedural issues, regardless those sitting for the bar examination index.shtml. of the applicable code. before July of 2016 had a thorough, 6. http://www.nycourts.gov/rules/chiefadmin/ Furthermore, an analysis of the albeit compressed, exposure to New index.shtml. CPLR indirectly gives students a York Practice and, given the promi- 7. http://www.nycourts.gov/rules/trial- courts/202.shtml. deeper understanding of the Fed- nence of recency in retaining informa- 8. http://www.nycourts.gov/rules/trial- eral Rules of Civil Procedure, the tion, that exposure provided a founda- courts/220.shtml. code that is presented to them tion for those practicing in New York 9. http://www.nycourts.gov/rules/trial- in their first-year civil procedure on the civil side. To quote Othello, “no courts/221.shtml. course as the ideal. Students in a more of that.” 10. See, e.g., Third Judicial District Rules, http:// www.nycourts.gov/courts/3jd/JudgesRules/3JD- CPLR course have an opportunity Judges%20Rules.shtml. to compare and evaluate solutions Conclusion 11. See, e.g., http://www.nycourts.gov/ to procedural issues that may be Judges are understandably unhappy courts/1jd/supctmanh/Uniform_Rules.pdf. quite different from the Federal when lawyers appearing before them 12. See, e.g., Rules of Justice James P. McClusky, Rules. Although many CPLR pro- do not know the applicable rules. Law- http://www.nycourts.gov/courts/5jd/jefferson/ supremecounty/rules.shtml. visions, by design, are identical in yers are unhappy when their adversar- 13. See, e.g., Rules of the Appellate Division substance to the Federal Rules, the ies practice unaware of the applicable Fourth Department, http://www.nycourts.gov/ CPLR has a fair number of eccen- rules, often creating unnecessary work courts/ad4/Clerk/AD4-RuleBook-web.pdf. tricities. and causing delay. Lawyers are frus- 14. See The New York Court of Appeals Civil Jurisdiction and Practice Outline, http://www. * * * trated when judges appear to coun- nycourts.gov/ctapps/forms/civiloutline.pdf. Through a process of comparative tenance sloppy practice through lax 15. http://www.nycourts.gov/rules/jointappellate/ analysis, the dedicated student will enforcement of the rules. NY-Rules-Prof-Conduct-1200.pdf. complete the CPLR course with a Ignorance may be bliss in certain 16. In fact, if you regularly practice in the Com- deeper understanding of both the aspects of life, but lawyers at the bar mercial Division, you might want to set your home page to http://www.nycourts.gov/rules/ CPLR and the Federal Rules. The in New York should not take refuge comments/index.shtml. student who masters the CPLR there when it comes to mastering the 17. http://www.nycourts.gov/rules/trial- will be well positioned to maneu- rules of civil practice. Procedure can be courts/202.shtml#70. ver through the procedural thick- learned, and sources can be identified, 18. See, e.g., Nassau County Commercial Division rules, http://www.nycourts.gov/courts/comdiv/ ets that lurk both in New York and no matter how “new,” or “old,” an nassau.shtml. other jurisdictions. attorney is. As my first legal mentor, 19. See, e.g., Commercial Division Rules of Justice A CPLR course also enables stu- Ira Bartfield, Esq., was fond of remark- Linda S. Jamieson, http://www.nycourts.gov/ dents to reflect upon the entire ing, “Just because wisdom comes late courts/comdiv/PDFs/Westchester_Rules_ Jamieson.pdf. breadth of New York civil sub- in life is no reason to reject it.” So, 20. http://www.nybarexam.org/ube/ube.html. stantive law. Most students taking while it is certainly true that the crea- 21. http://www.nybarexam.org/ube/ube.html the New York practice course are ture identified by Judge Weinstein, 22. Id. seniors, and the course offers a use- in its most recent form, bears some 23. I know, I’m blaming the UBE rather than any ful capstone to their study of the responsibility for our current state of pedagogic shortcomings on my part. substantive law. Many of the Court affairs, we must all make more of an 24. Alexander, Vincent C., The CPLR at Fifty: A View from Academia (2013). Faculty Publications. of Appeals decisions contained in effort to learn the rules of the road we Paper 2. http://scholarship.law.stjohns.edu/ Professor Oscar G. Chase’s author- travel in New York’s civil courts. n faculty_publications/2.

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“Moments in History” is an occasional sidebar in the Journal, which will feature people and events in legal history. Moments in History Attorney Advertising Worldwide spending on advertising reached nearly half a trillion dollars in 2012, with the United States as the largest market at $152.3 billion. Lawyer and law-firm advertisements account for only a small fraction of those expenditures, but they would not exist at all if not for the Supreme Court’s decision in Bates v. State Bar of Arizona. American lawyers of the 18th and 19th centuries typically were ill-disposed to promoting either themselves or their services through advertising. The Canons of Professional Ethics adopted by the American Bar Association (ABA) in 1908 noted that “the most worthy and effective advertisement possible . . . is the establishment of a well-merited reputation for professional capacity and fidelity to trust.” The ABA’s 1969 Code of Professional Responsibility prohibited advertising beyond listing specified information on business cards, stationery, office signs, and approved law directories. In 1976, John Bates and Van O’Steen placed an ad in a Phoenix newspaper for their legal clinic. The ad announced: “LEGAL SERVICES AT VERY REASONABLE FEES” and set out prices for particular services, such as uncontested divorce, adoption, bankruptcy and change of name. The State Bar of Arizona suspended them for violating a disciplinary rule applicable to Arizona lawyers that prohibited advertising. Reiterating holdings that commercial speech fell under the First Amendment, the U.S. Supreme Court struck down the Arizona ethics code provision barring lawyer advertising. It found that advertising that communicates truthful and valuable information to consumers serves both individual and societal interests and could “not be subjected to blanket suppression.” The Court carefully limited its ruling, not commenting on advertising that relates to the quality of legal services and leaving states free to regulate attorney advertising through “reasonable restrictions on the time, place, and manner.” Excerpted from The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (2015 Sterling Publishing) by Michael H. Roffer.

NYSBA Journal | September 2017 | 37 A Guide to Understanding the Laws of Interest By Adam Leitman Bailey and Dov Treiman

Adam Leitman Bailey, Esq. practices residential and commercial real hile prohibited in many religious traditions,1 estate law. He is one of two attorneys at New York real estate law firms interest is one of the most pervasive concepts with under 30 attorneys to be been ranked in Chambers & Partners, hon- Win the American economy. Seemingly simple on ored with a Martindale-Hubbell “AV” Preeminent rating, a Best Lawyer its surface, it presents a bewildering amount of complex- ranking for himself and his law firm, and selected as one of New York’s ity as soon as one digs into its legal implications. Real Top 100 attorneys by Super Lawyers. A New York State Judge wrote that estate practitioners, in particular, must know the rules of Mr. Bailey “was the best trial lawyer I saw in my nine years as a Judge interest in various scenarios, ranging from when nego- in New York City” and The Commercial Observer named him as one of tiating a mortgage or charging rent, to knowing the full New York’s Most Powerful Real Estate Attorneys. Dov Treiman chairs monetary stakes at risk in litigation. Adam Leitman Bailey, P.C.’s Landlord-Tenant Civil Litigation Practice and is a partner at the firm. Mr. Treiman has participated in many of the most Periods to Which Interest Attaches important landlord-tenant cases of this generation and is the Editor and Commentator of the Housing Court Reporter, the standard work used by In New York litigation, there are three periods to consider all the New York City courts and all quality practitioners of landlord-ten- regarding interest: the interposition of the claim until ant law to search through some 50,000 cases for applicable precedents verdict or decision, from then until judgment, and from for appellate briefs, legal documents and motions. Mr. Treiman was com- judgment to payoff. CPLR 5004 dictates that all three time missioned by the State of New York to produce special editions of several periods shall qualify for 9 percent simple annual interest of these works for their use in chambers by each of the 51 Housing unless the parties contract2 some other rate below usury.3 Judges. The authors would like to thank Hofstra Law student and Adam CPLR 5003 allows interest on any money obligation Leitman Bailey, P.C. spring extern and 2017 summer associate, Carly Clin- reduced to judgment, including judgments on claims that ton, for her research and assistance with the preparation of this article. do not carry interest prior to judgment.4 Equitable claims Starting next September, she will be joining the Firm as an associate. can, in the court’s discretion, also garner interest.5 Section

38 | September 2017 | NYSBA Journal 1961 of 28 U.S.C. does the same thing for federal claims den compounding of interest, but instead ruled it to be and sets interest at “a rate equal to the weekly average just ordinary permissible addition. 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, Higher Interest by Contract for the calendar week preceding the date of the judg- Parties can validly contract for interest above the statu- ment.” In federal litigation, the New York interest rate tory rate, but below the usury rate.11 “It is well settled governs pre-judgment and the federal rate controls post- that when a contract provides for interest to be paid at a judgment, both unless the parties in “clear, unambiguous specified rate until the principal is paid, the contract rate and unequivocal language” stipulate otherwise.6 of interest, rather than the legal rate set forth in CPLR 5004, governs until payment of the principal or until the Computing Simple Interest contract is merged in a judgment.”12 “Where there is a CPLR 5001 defines the date from which interest is com- clear, unambiguous, and unequivocal expression to pay puted as “the earliest ascertainable date the cause of an interest rate higher than the statutory interest rate action existed. In cases where damages incurred at vari- until the judgment is satisfied, the contractual interest ous times, interest is computed upon each item from the rate is the proper rate to be applied.”13 date it was incurred or upon all of the damages from a single reasonable intermediate date.” In cases where Usury Statutes there are damages that accrued at different times, such New York has three usury statutes: General Obligations as torts, interest can be computed separately on each Law (GOL) § 5-501(2), Banking Law §§ 14a(1) and 108 segment measured from its own moment of accrual. In and Penal Law § 190.40. The GOL and Banking Law set selecting the intermediate date, courts have considerable the maximum interest rate at 16%. The Penal Law estab- latitude, but if all the amounts at the various dates are lishes a rate of 25% as a felony. In all cases, the rate is the roughly equal in amount, courts frequently choose a date effective annual rate. that is simply halfway between the first and last date Courts construe GOL § 5–501(2)’s “interest on the loan the liabilities accrued. In an ejectment action, the First or forbearance” literally. It only affects loaned money Department in Rose Assoc. v. Lenox Hill Hosp.7 specifically and not merely money owed for some non-loan like endorsed this computational method, holding a “midway rent, taxes, or fines. Ruling on late fees, for example, the point constitutes a ‘single reasonable intermediate date’ First Department in Protection Industries Corp. v. Kaskel14 from which to calculate interest under CPLR 5001 (b).” specified that a late fee is not a forbearance. The Fourth In terms of foreclosure actions Department in F. K. Gailey Co. Inc. v. Wahl,15 agreed, writ- in an action on a promissory note, CPLR 5001 permits ing: a creditor to recover prejudgment interest from the We reject defendant’s contention that the late fee of date on which each payment of principal or interest 2% charged by plaintiff was usurious. The late fee was became due under the terms of the note until the date not a loan or forbearance of money and thus the usury which liability is established . . . . [But, i]f a promissory statute does not apply. note does not contain an interest provision but is pay- While privately imposed interest penalties meant to be able on demand, then interest accrues from the date of the demand, at the statutory rate for judgment.8 so punitive as to discourage any possibility of lateness are unacceptable, usury does not apply to municipal imposi- Problems in Calculating Interest tions on citizens. Establishing a landmark in this field Deciding whether courts should “substitute the so-called of interest analysis, in Waterbury v. City of Oswego,16 the ‘present value’ method of computing interest . . . for Fourth Department held: the traditional method of computation in determining We also reject plaintiff’s contention that the late fee is whether interest is usurious,” the Court of Appeals in usurious under General Obligations Law § 5-501(2). Band Realty Co. v. N. Brewster, Inc.9 held “interest on the The late fee is a penalty for failure to pay a water bill whole amount of principal agreed to be paid at maturity when due. It is designed to insure the prompt payment not exceeding the legal rate, may be taken in advance.” of water bills and is clearly not a loan or forbearance of money. Where there is no loan, there can be no usury. Spodek v. Park Property Development Associates,10 a case involving a note calling for monthly payments, The Court of Appeals adopted this reasoning in each requiring a separate calculation of interest running Seidel v. 18 East 17th Street Owners, Inc.,17 holding, “If the from each defendant individually, unraveled the com- transaction is not a loan, there can be no usury, however plex calculations the note’s scheme required. While the unconscionable the contract may be.” defendants’ defaults went beyond the six-year statute of However, pursuant to GOL § 5–501(6)(a), where the limitations, the court allowed the defaults within the six loan or forbearance amounts to $250,000 or more, there years to be entitled to a CPLR 5001 interest calculation, is no limitation below criminal usury on the amount of holding it simple interest. Spodek did not find totaling the interest that one may charge.18 separately calculated amounts for judgment to be forbid-

NYSBA Journal | September 2017 | 39 Usury Analysis Applied The certificate serves to prevent a later contest by the cer- In spite of the principle that “usury” is inapplicable for tificate’s signor on the basis of usury. The second is where anything but a loan, usury analysis still voids a contract the supposed victim of the usury is the one who actually where the penalties for late payment are too severe. engineered the usurious arrangement, provided there is Courts look at flat late fees and recompute them as inter- an intimate relationship between the usurer and the usu- est percentages and then invoke the usury statutes. For ree so that the usuree tricked the usurer into committing example, in Sandra’s Jewel Box v. 401 Hotel,19 the First the usury. In Pemper v. Reifer,26 the First Department held: Department stated: The fact that the borrower sets the rate of interest does Moreover, the late charge provision of the lease, which not relieve the lender from a defense of usury. . . . In awarded a 365% per annum penalty, should not be this regard, a borrower, who, because of a fiduciary or enforced. The charge, while not technically interest, other like relationship of trust with the lender, is under is unreasonable and confiscatory in nature and there- a duty to speak and who fails to disclose the illegality fore unenforceable when examined in the light of the of the rate of interest he proposes, is estopped from public policy expressed in Penal Law §190.40, which asserting the defense of usury where the lender right- makes an interest charge of more than 25% per annum fully relies upon the borrower in making the loan. a criminal offense. Thus, this latter form of estoppel in pais is limited to relationships where the nature of the relationship is such that at least one of the parties has a background with the With certain exceptions, other giving rise to a heightened sense of trust, rather such as usury, GOL § 5-527 than arm’s length. Understanding Compound Interest permits compound interest. The Court of Appeals defined “compound interest” in Spodek v. Park Prop. Dev.,27 writing, “Compound interest is commonly defined as ‘interest on interest’ or interest that Reiterating the same principle, the First Department is ‘paid on both the principal and the previously accumu- in Clean Air Options v. Humanscale20 held, “The late fee, lated interest.’ This contrasts with simple interest, which which according to the parties’ calculations results in an is ‘paid on the principal only and not on accumulated annual interest rate of 78%, is ‘unreasonable and confisca- interest.’” tory in nature.’”21 For example, consider a $100 January first debt at 2% In addition, the court has stated: per month. Assuming the debt remains unpaid, at simple A corporation may not interpose a defense of civil interest, the accumulated interest is 12 x 2% or 24% for a usury . . . An individual guarantor of a corporate obli- payoff of $124.00. gation is also precluded from asserting such a defense Now, let us use compound interest at 2% interest per . . . However, where a corporate form is used to con- month. At the end of January, the debt has grown to ceal a usurious loan made for personal, not corporate $102 ($100 + 2% of $100). At the end of February, $104.04 purposes, the defense of usury may be interposed . ($102 + 2% of $102), then March, $106.12 ($104.04 + 2% . . Further, the prohibition against asserting such a defense does not apply to a defense of criminal usury of $104.04). Continuing this pattern through the year, the where interest in excess of 25% per annum is know- accumulated debt at the end of December is $126.82. The ingly charged.22 accumulated interest is $26.82, nearly two points above criminal usury. Under 12 U.S.C. § 1735f-7a(a)(1), federal law preempts With certain exceptions, such as usury, GOL § 5-527 state usury laws for first mortgages on real property permits compound interest. The law assumes simple made after March 31, 1980 for federally related mortgage interest unless the parties contract otherwise. “[M]ere loans.23 The Second Circuit Court of Appeals in Wolfert v. silent acquiescence in [an] account stated [does] not con- Transamerica Home First24 found New York’s usury laws stitute an express promise to pay compound interest.”28 preempted under this statute. Technically, the explanation of compound interest given above was for “periodic compound interest” where Estoppel the compounding takes place at the end of some fixed One may naturally question the legal significance of the period like once a month, but it could be any fixed period one who is charged the excessive interest participating in such as weekly, biweekly, or annually. The only limitation crafting the transaction. This should and can give rise to is the usury laws that look to how the interest adds up for a theory of estoppel. In Seidel v. 18 East 17th Street Owners, a one-year period, regardless of how it is achieved. Non- Inc.,25 the Court of Appeals instructed on two variants of periodic compound interest occurs with certain landmark the theory of estoppel in pais. The first is when the sup- events that take accumulated interest and effectively add posed victim of usury executes an estoppel certificate. it to the principal of the debt before establishing that prin-

40 | September 2017 | NYSBA Journal cipal plus interest as the new principal to which to apply 11. Astoria Fed. Sav. & Loan Ass’n v. Rambalakos, 49 A.D.2d 715 (2d Dep’t fresh interest. Thus, where a contract called for interest, it 1975). normally is charged until the judgment and is then fixed 12. Citibank, N.A. v. Liebowitz, 110 A.D.2d 615, 615 (2d Dep’t 1985). at that amount, to which the statutory post-judgment 13. Retirement Accounts v. Pacst Realty, 49 A.D.3d 846, 847 (2d Dep’t 2008). interest is now imposed, effectively “compounding” the 14. 262 A.D.2d 61 (1st Dep’t 1999). interest by the event of the entry of judgment.29 15. 262 A.D.2d 985, 985 (4th Dep’t 1999). While normal judicial awards against a governmen- 16. 251 A.D.2d 1060, 1060 (4th Dep’t 1998) (internal citations omitted). tal body are, like those against private citizens, simple 17. 79 N.Y.2d 735, 744 (1992). interest, eminent domain presents a special case. Since 18. Bristol Inv. Fund, Inc. v. Carnegie Int’l Corp., 310 F. Supp. 2d 556, 562 the courts are seeking to have the private party put in (S.D.N.Y. 2003). economically the same situation the private party would 19. 273 A.D.2d 1, 3 (1st Dep’t 2000). have been in but for the taking, in 520 East 81st Street 20. 142 A.D.3d 923, 924 (1st Dep’t 2016). Associates v. State of New York,30 the First Department 21. See also Hankin v. Armstrong, 113 Misc. 2d 24, 25 (Sup. Ct., App. Term 9 awarded the takings plaintiff compound interest until the and 10, 1981). entry of judgment, but simple interest thereafter. 22. Tower Funding, Ltd. v. David Berry Realty, Inc., 302 A.D.2d 513, 514 (2d Dep’t 2003). Distinguishing Late Fees and Interest 23. See 12 U.S.C. § 1735f–5(b). “Late fees” and “interest” are apparently different. But, 24. 439 F.3d 165 (2d Cir. 2006). when basing the fixed fee on lateness of a fixed payment, 25. 79 N.Y.2d 735 (1992). dividing the former by the latter yields a percentage. 26. 264 A.D.2d 625, 626 (1st Dep’t 1999). However, a “transaction must be considered in its 27. Spodek v. Park Prop. Dev. Assocs., 96 N.Y.2d 577, 580 (2001). totality and judged by its real character, rather than by 28. R.F. Schiffmann v. Baker & Daniels, 147 A.D.3d 482, 483 (1st Dep’t 2017). the name, color, or form which the parties have seen fit to 29. Spodek, 96 N.Y.2d at 581–82. give it.”31 In denying summary judgment on a promisso- 30. 19 A.D.3d 24 (2005). ry note, the Second Department in Lugli v. Johnston32 held: 31. Feinberg v. Old Vestal Rd. Assocs., 157 A.D.2d 1002, 1003 (3d Dep’t 1990) Specifically, the defendant raised triable issues of fact (quoting Lester v. Levick, 50 A.D.2d 860, 862–63 (2d Dep’t 1975)). with his contention that the annualized rate of the 32. 78 A.D.3d 1133, 1135 (2d Dep’t 2010). subject loan was at least 30%, in light of the combined annualized rates for interest and the loan origination fee, and that the loan’s interest rate was, thus, in excess of the amount allowed by General Obligations Law § 5-501(1) and Baking Law § 14-a(1). In determining Learn more MEMBER BENEFIT about Communities whether a transaction is usurious, the law looks not to SCAN HERE >> its form, but its substance, or real character. Conclusion While on its surface, the concept of “interest” appears to be a simple matter of calculating a percentage of what someone owes, the legal development of interest in New York law shows far greater complexity beneath the surface and far greater importance in understanding the amount of money that can be charged and collected. n

1. As to Judaism, interest is forbidden at Deuteronomy 23:19. Some Chris- tians interpret a similar rule based on Matthew 5:42 combined with the provision from Deuteronomy and other similar provisions. Islam has similar prohibitions in the Quran at 3:130. However, all of these religious provisions have interpreters who say that only usury is prohibited. COMMUNITIES 2. Lisa Stifler, Debt in the Courts: The Scourge of Abusive Debt Collection Litiga- CONVERSE, CONNECT AND COLLABORATE tion and Possible Policy Solutions, 11 Harv. L. & Pol’y Rev. 91, 112 (2017).

3. IRB-Brazil Resseguros, S.A. v. Inepar Investments, S.A., 83 A.D.3d 573 (2011). COMMUNITIES FEATURE: 4. CPLR 5001. • Member-to-member communications • Collaborative workspaces • Member profiles • Individual privacy settings 5. Id. • Shared document libraries • Flexibility in timing and format of discussion messages 6. FCS Advisors, Inc. v. Fair Fin. Co., 605 F.3d 144 (2d Cir. 2010). 7. 262 A.D.2d 68, 69 (1st Dep’t 1999). 8. Gliklad v. Cherney, 132 A.D.3d 601, 601 (1st Dep’t 2015). To be an active part of NYSBA’s communities, you can interact through email, the web or your mobile device. 9. 37 N.Y.2d 460 (1975). Visit: http://communities.nysba.org 10. 96 N.Y.2d 577 (2001).

NYSBA Journal | September 2017 | 41 Want to Be an Entertainment Lawyer? Know Your CPLR By Hon. Martin Schoenfeld

he year was 1971 B.C. (Before Computers). I sat in During my judicial career I have decided a number my New York Practice class at Syracuse University of entertainment-related cases in such areas as contracts, TSchool of Law writing with yellow markers, high- real estate, and personal injury, many of which involved lighting what I believed were the most significant points issues requiring the application of the CPLR. The CPLR is in our Civil Practice Law and Rules (CPLR) textbook. an extremely broad topic. This article is limited to motion Simultaneously, I dreamed about becoming the next suc- practice, primarily as it relates to certain aspects of juris- cessful executive at a major motion picture, television or diction, injunctive relief, and accelerated judgments. In so recording company, or of representing famous musicians, doing, I will refer to three of my own early experiences, actors, and other well-known celebrities. At the end of before becoming a judge, working as a litigation associate the semester, upon reviewing my notes before finals, I at a boutique law firm, and clerking for a New York State realized that more than 90 percent of my CPLR textbook Supreme Court justice. was now covered with yellow markings. What did I learn from this somewhat tedious course? More important, Inconvenient Forum how was studying the CPLR relevant to my imagined When the court finds that in the interest of substantial future career as an entertainment lawyer? justice the action should be heard in another forum, the court, on the motion of any party, may stay or dis- Introduction miss the action in whole or in part on any conditions 7 A comedian who appeared on a television variety show that may be just. sued its host and producer for defamation;1 a motion While I was an associate attorney in New York, our picture company challenged the X rating given to its film law firm received a telephone call from California coun- by the Motion Picture Association of America;2 and an sel. Our client, Salvatore “Sonny” Bono, a well-known entertainment management firm commenced an action entertainer,8 came to New York to perform at the West- claiming to have exclusive rights to represent the 2012 bury Theater. Mr. Bono, a California resident, was staying winner of American Idol’s television singing competition.3 at a local hotel when he was served with a summons. The The CPLR played a role in each of these cases. plaintiff, Michigan Star Theatres, Inc., having a theater In the entertainment field, court decisions often help in Flint, Michigan, was suing Mr. Bono, alleging that he shape negotiation strategy and contract drafting. In this breached an agreement to appear in the play A Funny regard, New York and California, the world’s entertainment capitals on the east and west coasts, are the most 4 prominent states hearing entertainment cases. Martin Schoenfeld, a New York City judge for more than 30 years, is Of course, many of these cases are heard in the federal an Associate Justice, Appellate Term, First Judicial District. This article is courts, which have exclusive jurisdiction over matters dedicated to my classmate, James P. McDonald, and to my many former arising under the Copyright Act.5 On occasion, though, interns who, while assigned to work on motions in chambers, discovered even the federal courts will seek guidance from our state that New York practice under the CPLR, when applied to notable fact courts.6 patterns, is a dynamic experience.

42 | September 2017 | NYSBA Journal Thing Happened on the Way to the Forum. The action was The premise behind any inconvenient-forum applica- commenced in N.Y. Supreme Court, Nassau County.9 tion is that although the court has personal jurisdiction, To my surprise, the firm assigned the case to me. Our the case would nevertheless be better litigated elsewhere. goal was to have the action dismissed outright, or at Thus, New York judges must first decide whether per- least have it heard in California. I enthusiastically began sonal jurisdiction exists before they address the issue of preparing affidavits and writing a memorandum of law. inconvenient forum. This is exactly what happened in the A motion was made before Justice William J. Sullivan, Bono and Lennon cases. who found unpersuasive both our argument of improper The entertainment field being a global business, coun- service and our contention that the plaintiff lacked legal sels’ knowledge of CPLR Article 3, which covers juris- capacity to sue in New York. He did agree with us, how- diction,17 service of process and inconvenient forum, ever, that under CPLR 327(a) the case should not be heard is essential for successful litigation. The best way for in New York. After reciting several relevant factors, such entertainment lawyers to minimize jurisdictional pitfalls as residency and where the contract was to be performed, is to include service of process, choice of law and exclu- Justice Sullivan stated: “There is not the slightest nexus sive jurisdiction clauses in their clients’ contracts. That of this claim with this state. To require a trial here would was done in Phillips v. Audio Active Ltd.18 There, Peter not only be burdensome [to Bono], but would institute (Pete Rock) Phillips, a Bronx rap artist,19 sued his record an unjustifiable imposition upon our courts.”10 The judge company in New York federal court, alleging breach of dismissed the case, conditioned on Mr. Bono agreeing to contract, copyright infringement, and unfair competition. accept service of process in California. This was a reason- His contract contained a choice of law and forum selec- able result for our client. tion clause requiring that English law apply and that There is an interesting inconvenient-forum case legal proceedings be brought in England. On appeal, in involving the Beatles, ABKO Industries, Inc. v. Lennon,11 a decision by the U.S. Court of Appeals for the Second in which the Appellate Division, First Department, was Circuit, Judge Richard Cardamone20 wrote: in a “New York state of mind,”12 denying dismissal as to A plaintiff may think that as the initiator of a lawsuit three of the four British band members. After the dissolu- he is the lord and master of where the litigation will be tion of the Beatles’ partnership and termination of their tried and under what law. But if he is a party to a con- management contract,13 the group’s former manager, tract that contains forum selection and choice of law Alan B. Klein, sued in New York for alleged commissions clauses his view of himself as ruler of all he surveys may, like an inflated balloon, suffer considerable loss owed and repayment of loans made to the band’s compa- of altitude.21 nies. The Appellate Division, modifying the decision of Supreme Court Justice Jacob Markowitz, dismissed the As a result, Mr. Phillips’ breach of contract claim was complaint against Paul McCartney, who had not signed dismissed as having to be litigated in England. His other the management contract. In most other respects, the claims were allowed to remain in New York as not having Appellate Division affirmed the lower court’s findings, originated from the contract. holding that the other defendants were subject to New York’s jurisdiction. This included Richard (Ringo Starr) Preliminary Injunction Starkey, who was served in England where he resided, A preliminary injunction may be granted in any action but who, according to the Supreme Court opinion, where it appears that the defendant threatens or is “admittedly does do business here and draws substantial about to do, or is doing . . . an act in violation of the revenues from [this] State.”14 plaintiff’s rights respecting the subject of the action, Once jurisdiction was established, the Appellate Divi- and tending to render the judgment ineffectual, or in any action where the plaintiff . . . would be entitled to sion next considered and affirmed the lower court’s a judgment restraining the defendant from the com- opinion that New York was not an inconvenient forum. mission . . . of an act, which if . . . continued during In this regard, the Appellate Division noted that despite the pendency of the action, would produce injury to the existence of some factors supporting dismissal, a the plaintiff.22 “substantial nexus with New York exists.”15 According to the Appellate Division, this included the following: A few years ago, in a non-litigated matter, Time War- that plaintiff was to perform in New York most of his ner Cable and CBS were involved in a bitter contract managerial and promotional activities on behalf of the dispute concerning several issues involving broadcasting Beatles; that the Beatles derive most of their income from professional football games, including the ownership of New York; that the voluminous records plaintiff requires digital rights and the parties’ respective percentage of to prove his claims are in New York; that plaintiff would revenue sharing. Not surprisingly, these corporate enter- incur expenses so large in pursuing the action in England tainment giants managed to resolve all their differences that he might be required to abandon the action; and that just in time for the kickoff of the National Football League the judicial effort in the New York actions had already season,23 because sporting events are a major source of been substantial.16 income to the broadcasting industry.24 A football black-

NYSBA Journal | September 2017 | 43 out would have been devastating to Time Warner in the In the entertainment industry, the need for exclusive loss of subscribers and to CBS in the loss of ratings and negotiations and a right of first refusal to televise not only advertisers. sporting events, but also other special types of shows,32 As part of my early legal career, I had the good are of paramount importance. Without them, a network fortune of clerking for Jerome W. Marks, a New York is placed in the precarious position of promoting an event State Supreme Court justice.25 My duties with respect and enhancing its value without sufficient security to pre- to motion practice included research and writing draft vent the future benefit from being reaped by another broad- opinions. In one case, CBS Inc. v. French Tennis Federa- caster. In competing with others for the right to broadcast tion,26 the television network CBS moved preliminarily to events, it is only natural to the networks that these pro- enjoin its competitor NBC from televising the prestigious grams are considered so unique and extraordinarily valu- French Open Tennis Tournament. This event is the first able as to warrant the remedy of injunctive relief. of four major yearly tennis tournaments known as the Of course, it is not just in matters seeking to pre- Grand Slam. The other three are the All England Lawn serve television broadcasting rights that injunctive relief Tennis Championship, known as Wimbledon, the United requests – sometimes successful, sometimes not – are States Open, and the Australian Open. At the time of this made in the entertainment field. For example, actress litigation, NBC had the rights to televise Wimbledon. CBS Sophia Loren, as female lead in the motion picture El Cid, televised the United States Open and had an expiring sought preliminarily to enjoin the distribution of that film license agreement with the French Tennis Federation’s unless she received billing credit equal to Charlton Hes- agent, ProServ, to broadcast the French Open. ton, her male counterpart.33 In another case, Stefani Ger- The expiring agreement with ProServ gave CBS a time manotta, better known as Lady Gaga, sought to enjoin period to negotiate exclusively for the continued televi- a company from attempting to use the tradename Lady sion rights to the French Open. Thereafter, ProServ could Gaga with Design for a line of cosmetics and jewelry.34 field other offers, conditioned upon CBS having a right of Recently a Hungarian folk singer commenced an action first refusal to match any offer on equal terms. After the to enjoin Beyoncé and her husband Jay-Z from allegedly negotiation period ended, ProServ presented CBS with an sampling and digitally using that singer’s unique voice offer it received from NBC. The offer included not only a on their hit song “Drunk in Love.”35 In another recent specified amount of money but also a requirement that case, plaintiff Cash Money Records, Inc., claiming exclu- the network promote Wimbledon and the French Open sive rights to the recordings of Dwayne Michael Carter, as a coordinated promotional package or alternatively Jr., better known as Lil Wayne, asked to preliminarily must pay the additional sum of $250,000,27 which today enjoin Tidal, a digital streaming music service company would equal at least twice that. Not having the rights to controlled by Jay-Z, from streaming Lil Wayne’s songs.36 televise Wimbledon, CBS claimed that by requiring the While music industry technology continues to develop Wimbledon promotional tie-in or, alternatively, to pay an rapidly, as noted by the latter two cases, the one constant arbitrarily fixed sum of money, the offer was intentionally is that the business remains based on the public recogni- structured to ensure that NBC would obtain the televi- tion of its artists. In this regard, the right to use a singing sion rights to the French Open.28 group’s name is significant. When a band breaks up or On a motion for a preliminary injunction, the mov- a member is replaced, an application for preliminary ant must show three things: (1) a reasonable likelihood injunctive relief regarding the use of that group’s name is of ultimate success on the merits, (2) irreparable injury often made by one or more of the artists, their manager absent such relief, and (3) a balancing of the equities in its or their record producer. Requests for this provisional favor.29 In his opinion, Justice Marks found a likelihood remedy have been associated with singing groups of all that the offer to CBS was designed to frustrate its right of musical genres, including doo-wop, heavy metal and first refusal and therefore was not a good faith proposal. even classical,37 and have involved popular names like Regarding irreparable injury, Justice Marks stated that it The Drifters and Grand Funk Railroad.38 is difficult to ascertain a value which is represented by a loss of one’s viewing audience or to determine the effect Summary Judgment such loss has upon a network’s prospective advertisers Any party may move for summary judgment in any who are influenced by television viewer ratings.30 Finally, action, after issue has been joined . . . . in balancing the equities, the opinion noted that while CPLR 3212(a). ProServ should not be prevented from making the best A motion for summary judgment shall be supported possible deal, and NBC should not be eliminated from by affidavit, by a copy of the pleadings and by other available proof . . . . The motion shall be granted if, competitive bidding, CBS, in accordance with its agree- upon all the papers and proof submitted, the cause of ment, is entitled to an assurance that negotiations are con- action or defense shall be established sufficiently to 31 ducted fairly. Accordingly, the motion for a preliminary warrant the court as a matter of law in directing judg- injunction was granted, conditioned upon CBS posting ment in favor of any party. an undertaking required by CPLR 6312(b). CPLR 3212 (b).

44 | September 2017 | NYSBA Journal Although decided pre-CPLR, the seminal summary The motion was returnable in New York County judgment case, still cited today, is Sillman v. Twentieth before Justice Bernard Nadel. He denied summary judg- Century-Fox Film Corp.39 In Sillman, contracts were exe- ment in a short opinion, stating that an issue of fact cuted to make a motion picture version of the Broadway existed, defendant exhibitor having claimed to have been musical play New Faces of 1952. The show launched the fraudulently induced into entering into the contract.46 careers of such performers as Eartha Kitt, Paul Lynde, Defendant alleged that when the agreement was made, and a young writer named Mel Brooks, and the film our client already knew that the picture would not do used such new techniques as Cinemascope and Eastman- well. Five years later, after numerous depositions, dis- color.40 Shortly after the picture was released, however, missal of a federal antitrust suit and two appeals to the the distributor, Twentieth Century-Fox Film Corp., was Appellate Division, First Department,47 both of which we confronted by the filmmakers and by various inves- won, the case was settled. However, it appears that like tors, each claiming that they were entitled to receive the movie itself, my creative idea for obtaining a swift, the film’s revenue. Litigation commenced to determine favorable disposition by way of summary judgment in whether a binding assignment required that distribution lieu of complaint did not live up to expectations. be on a profit-sharing basis. Ultimately, the N.Y. Court of As litigation in the entertainment field often involves Appeals, faced with two agreements, one containing an contract disputes, it is common for practitioners to seek assignment provision, the other having an anti-assign- a final determination by way of a summary judgment ment clause, found that the circumstances raised a triable motion, which is essentially a trial on papers, or by motion issue of fact. The Court denied a summary judgment to dismiss “founded upon documentary evidence.”48 For motion made on some of the investors’ behalf, famously example, in Evans v. Famous Music Corp.,49 a music pub- stating that to grant summary judgment it must clearly lisher was sued by Ray Evans and by the estates of sev- appear that no material and triable issue of fact is present eral other legendary motion picture songwriters, Henry and that issue-finding, rather than issue-determination, is Mancini, Johnny Mercer, and Richard Whiting. The the key to the procedure.41 complaint alleged that pursuant to their written agree- While some successful musical plays that are later ments, the songwriters were entitled to share in the ben- made into movies become blockbuster hits, such as Grease efits resulting from their publishers receiving foreign tax and Chicago,42 that is obviously not always the case. For credits. The N.Y. Court of Appeals held that tax credits example, the play Man of La Mancha, which introduced were part of a tax policy and not expressly made part of such classic songs as “The Impossible Dream,” was a the contract provision that obligated the publisher to pay huge Broadway success, winning five Tony Awards, its songwriters half of all net sums actually received.50 In including Best Musical.43 It then became a motion picture granting summary judgment dismissing the action, the under the artistic guidance of the well-known director Court wrote that if the parties’ intent is “discernable from Arthur Hiller and starred the iconic Peter O’Toole.44 The the plain meaning of the language of the contract, there is picture, distributed by United Artists Corporation, was no need to look further . . . even if the contract is silent on to open in movie theaters during the Christmas season. It the disputed issue.”51 was expected to be such a huge hit that exhibitors began In NFL Enterprises LLC v. Comcast Cable Communications bidding for the right to show the film before it was even LLC,52 the National Football League’s affiliate, NFL Enter- completed. Unfortunately, the motion picture did poorly prises, and Comcast Cable Communications, the nation’s at the box office,45 causing financial losses to the film’s largest cable television company, entered into negotiations exhibitors and others. for the latter to distribute the television programming Our law firm was asked to commence a lawsuit on of professional football games. According to NFL Enter- behalf of one of the United Artists’ subsidiaries that had prises, the final written agreement required Comcast to been unsuccessful in its attempt to collect a balance due broadly distribute the games to all major networks. Com- from one of the Man of La Mancha exhibitors. The exhibi- cast disagreed, claiming that according to the parties’ con- tor, which owned several theaters in New York City, had tract, it had the right to limit distribution of the games to signed a written contract and guarantee for the exclusive serve its own premium channel package, for which view- right to show Man of La Mancha in its newest movie the- ers would pay an additional fee. In denying Comcast’s ater located in San Juan, Puerto Rico. To avoid protracted motion and NFL Enterprise’s cross-motion for summary litigation, we moved under CPLR 3213 at my suggestion judgment, Justice Luis Gonzales, writing for a unanimous for summary judgment in lieu of a complaint. This rule panel of the Appellate Division, First Department, stated: provides that when an action is based upon an instru- While it is not the Court’s preference to find a triable ment for the payment of money only, in this case a bal- issue of fact concerning the terms of a written agree- ance due on the guarantee, plaintiff may serve with the ment between two sophisticated contracting parties, summons a notice of motion for summary judgment and our options are limited where the contractual provi- the supporting papers in lieu of a complaint. sions at issue are drafted in a manner that fails to eliminate significant ambiguities.53

NYSBA Journal | September 2017 | 45 A motion to dismiss pursuant to CPLR 3211(a)(1) no money went to the Ronettes. As a result, the Ronettes was granted by Justice Helen Freedman in Silvester v. commenced a lawsuit against Phil Spector and his com- Time-Warner, Inc.54 In that case, several oldies recording panies. In response, the defendants argued that because artists, including lead plaintiff Tony Silvester of The Main Mr. Spector owned the master recordings, his companies Ingredient, sought monetary damages occasioned by their could exploit the masters anyway they wanted, free of all recording companies having released their records for claims by plaintiffs. internet transmission, a medium that did not exist when Defendants moved to dismiss the case under CPLR the parties’ contracts were executed. In affirming Judge 3211(a)(7) for failure to state a cause of action and under Freedman’s decision, the Appellate Division found that CPLR 3211(a)(8) for lack of personal jurisdiction. They documentary evidence conclusively showed that the did not move under CPLR 3211(a)(1) based on documen- plaintiffs had expressly conveyed to defendant compa- tary evidence. Their motion was denied.63 After further nies the right to exploit their recordings by any means motion practice and several interlocutory appeals, the including methods unknown at the time of contracting.55 case was tried nonjury before Justice Paula Omansky. A dismissal motion was also made in Pugach v. HBO Based on the trial testimony, she awarded plaintiffs Pictures, Inc.56 There, defendant production company, substantial monetary damages, finding that the parties’ having entered into an agreement for the option to pro- contract did not convey to defendants the right to exploit duce a documentary film entitled Crazy Love, based upon new technologies or marketing developments such as plaintiffs’ bizarre life stories,57 subsequently assigned its synchronization licensing.64 The Appellate Division rights to HBO Pictures, Inc. Plaintiffs sued, claiming that affirmed,65 but the N.Y. Court of Appeals held differently. the production company failed to properly exercise its Writing for that Court, Judge Victoria Graffeo, while option and, therefore, could not make that assignment. sympathetic to plaintiffs’ plight,66 applied New York’s Justice Orin Kitzes dismissed the complaint pursuant to rule to first search the four corners of the contract,67 both CPLR 3211(a)(1), documentary evidence, and CPLR without relying on other resources. She concluded that 3211(a)(7), failure to state a cause of action. The judge, there was no need for the lower court to consider extrin- noting that a written contract that is complete, clear, and sic evidence because “the contract unambiguously gives unambiguous on its face must be enforced,58 found that defendants unconditional ownership rights to the master the assignment was made in accordance with the option recordings,”68 including the “right to make phonograph terms of the agreement. records, tape recordings or other reproductions . . . by any method now or hereafter known.”69 She further stated The Greenfield Decision that in the absence of a reservation clause,70 a broad grant The common thread running through these four decisions of ownership rights includes the right to use the work in and a number of other entertainment actions59 is that they any manner.71 Thus, the Court held that defendants did all cite Greenfield v. Philles Records, Inc.60 In that case, not breach the contract by licensing the master recordings three young ladies from Spanish Harlem formed a sing- and that the plaintiffs were not entitled to share in the ing group in the 1960s called the Ronettes.61 They later profits received from synchronization licensing. signed a recording contract with Philles Records, owned The Court did, however, offer some relief, holding by the then highly successful producer Phil Spector.62 The that according to the terms of their recording contract, the Ronettes had several major hit songs, including “Be My Ronettes, while not entitled to licensing fees, could recov- Baby,” which climbed to number one on the record charts. er damages for the sale of records, compact discs and Despite their popularity, the group disbanded a few years other audio reproductions resulting from the third-party later. Except for an initial advance, the Ronettes received distribution of their songs, but limited to the royalty fee no other royalty payments. Meantime, the lead singer, schedule incorporated in the recording agreement. In this Ronnie, married Phil Spector, but the marriage was regard, defendants argued that Phil Spector’s ex-wife, short-lived. The couple divorced in California, executing now Ronnie Greenfield, having signed a general release general releases as part of the divorce decree. as part of the California divorce, should be barred from Some 20 years later, there was a resurgence of public sharing in any recovery. interest in 1960s music. Mr. Spector’s companies began Interestingly, California, unlike New York, will at the capitalizing on this trend by licensing the Ronettes’ mas- outset consider extrinsic evidence in addition to the con- ter recordings for use in movie and television productions tract’s language.72 Here, the trial testimony before Justice known in the entertainment industry as synchronization. Omansky showed that the release was intended to have For example, “Be My Baby” became the background Ms. Greenfield surrender her rights as Phil Spector’s wife music for the opening credits of the movie Dirty Dancing. to share in his corporate businesses and had nothing to In addition, the master recordings were licensed for redis- do with the 1963 recording contract. Ronnie Greenfield tribution by third parties and also for compilation albums was therefore entitled to receive her portion of any roy- with other artists. While the Spector companies earned alty payment required to be made to plaintiffs.73 It is not considerable compensation from these various licenses, surprising that both the laws of New York and California,

46 | September 2017 | NYSBA Journal previously mentioned as the two major states for hearing 6. Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540 (2005) (in a dispute entertainment cases, were a part of the Greenfield decision. between music recording companies regarding ownership of early sound recordings by renowned classical artists such as opera singer Maria Callas and cellist Pablo Casals, the U.S. Court of Appeals for the Second Circuit Conclusion requested the New York State Court of Appeals to determine, inter alia, The year is now 2017 A.D. (After Digital). Instead of whether expiration of the term of a copyright in England terminates a common law copyright in New York); King v. Fox, 7 N.Y.3d 181 (2006) (in a dis- yellow markers and pens, law students are using lap- pute between former member of rock band Lynyrd Skynrd and his attorney, tops and tablets. The scope of disclosure has likewise the Second Circuit requested the New York State Court of Appeals to resolve expanded to include e-discovery. For example, in a case certain questions concerning fee arrangements); Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583 (2016) (before deciding whether owners of pre-1972 against satellite provider DISH Network by Cablevision, sound recordings by such artists as the Turtles were entitled to receive royal- whose affiliate television programs include Mad Men and ties from broadcasters, the Second Circuit sought guidance from the New The Walking Dead, CPLR 3126 sanctions were imposed York State Court of Appeals about whether such owners have a common law right to control public performance of those recordings). for failure to preserve electronically stored information.74 7. CPLR 327(a). In a pre-action proceeding under CPLR 3102(c), Atlantic 8. The late Salvatore Phillip “Sonny” Bono, part of the famous singing duo Recording Corporation requested that Reddit, a media Sonny & Cher, was also formerly a U.S. Congressman from California. Mr. website, disclose the identity of the poster of a new song Bono remains the only member of Congress to have previously scored a num- 75 ber one pop single on the U.S. Billboard Hot 100 Chart. Whitburn, Joel, Joel by the band Twenty One Pilots. The song was posted a Whitburn’s Top Pop Singles. 12th ed. Menomonee Falls, WI: Record Research, week before its release date, allegedly causing damage to 2009. Print; Bono, Sonny. And the Beat Goes On (New York: Pocket, 1991). Atlantic’s marketing strategy.76 9. Michigan Star Theatres, Inc. v. Bono, Index No. 13692/1977 (Sup. Ct., Nas- Technological innovations continue to revolutionize sau Co.). the entertainment industry almost daily, while at the 10. Id. same time movies are still made, concerts held and dis- 11. 52 A.D.2d 435 (1st Dep’t 1976). putes litigated in accordance with the CPLR. So the next 12. Song by Billy Joel from the album Turnstiles (1976). 13. See Peter McCabe & Robert D. Schonfeld, Apple to the Core: The Unmak- time you are standing behind the barricades of 60 Centre ing of the Beatles 199 (Pocket Books 1972) (“For several years, the Beatles Street, gazing at the celebrities as they ascend the steps of almost singlehandedly directed the development of the recording industry.”). Manhattan’s Supreme Courthouse to attend the Tribeca 14. ABKO Indust., Inc. v. Lennon, 85 Misc. 2d 465, 470 (Sup. Ct., N.Y. Co. Film Festival’s annual reception – or you are sitting in 1975), aff’d, 52 A.D.2d 435 (Silverman, J., dissenting in part in an opinion as to defendant Starkey for lack of in personam jurisdiction). the balcony at Brooklyn’s Barclays Center cheering on 15. ABKO Indus., Inc. v. Lennon, 52 A.D.2d 435, 440 (1st Dep’t 1976). your favorite artists as they take the stage for the Rock & 16. Id. at 441. Roll Hall of Fame induction ceremony – remember that 17. See Fischbarg v. Doucet, 9 N.Y.3d 375 (2007) (CPLR 302 personal jurisdic- you as an attorney can also play an important role in the tion established over California New Age music company based on con- entertainment field, when you know your CPLR. n tinuous telephone calls, facsimiles and emails); Chase Manhattan Bk. v. AXA Reassurance UK PLC, N.Y.L.J., Aug. 9, 2001, at p. 18, col. 1 (Sup. Ct., N.Y. Co.) (occasional filming in New York by foreign motion picture producer, without 1. Mason v. Sullivan, 26 A.D.2d 115 (1st Dep’t 1966) (comedian Jackie Mason more, does not amount to doing business for purposes of CPLR 301). sued Ed Sullivan, who said that Mr. Mason made obscene gestures while appearing on his television show; a CPLR 3211 motion to dismiss the complaint 18. 494 F.3d 378 (2d Cir. 2007). was denied); Costanza v. Seinfeld, 279 A.D.2d 255 (1st Dep’t 2001) (plaintiff’s 19. Peter Phillips, once a member of the critically acclaimed Pete Rock & defamation and invasion of privacy claims, alleging use of his name and per- C L Smooth, is an East Coast hip hop producer, DJ, and rapper. http:// sona to create a character for the television program Seinfeld, were dismissed). en.wikipedia.org/wiki/Pete_Rock. 2. Miramax Films Corp. v. Motion Picture Ass’n of Am., Inc. (according to 20. The Honorable Richard J. Cardamone, deceased, was a New York State CPLR Article 78, Miramax Film Corp. challenged, unsuccessfully, the X rating Supreme Court Justice from 1963 to 1981, until his appointment by President given to its motion picture Tie Me Up! Tie Me Down!); Morgan v. Worldview Reagan to the United States Court of Appeals for the Second Circuit, http:// Entertainment Holdings, Inc., 141 A.D.3d 461 (1st Dep’t 2016) (plaintiff may www.nycourts.gov/history/legal-history-new-york/luminaries-appellate/ pursue his contractual damage claim for loss of an executive producer credit cardamone-richard.html; N.Y.L.J., Oct. 23, 2015, at p. 2., col. 1. on the film Birdman). 21. Phillips v. Audio Active Ltd., 494 F.3d 378, 381 (2d Cir. 2007). 3. 19 Entertainment, Inc. v. McDonald, 2016 WL 5394206 (Sup. Ct., N.Y. Co. 22. CPLR 6301. 2016) (New York action concerning who has the right to represent singer Phil- 23. Bill Carter, CBS Returns Triumphant to Cable Box, http://www.nytimes. lip Phillips is stayed under CPLR 2201 pending a hearing before California’s com/2013/09/03/business/media/cbs-and-time-warner-cable-end-con- Labor Commission). tract-dispute.html (Sept. 2, 2013). Roger Yu, CBS, Time Warner Cable reach 4. See Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 462 (6th Cir. 2001) (“Idea- agreement, end blackout, http://www.usatoday.com/story/money/busi- based claims arise most frequently in the entertainment centers of New ness/2013/09/02/cbs-time-warner-cable-agreement/2755953/ Sept. 3, 2013. York and California . . . .”); Kirt T. Schroder, Entertainment Law: Some Practice 24. Sapna Maheshwari, $5 Million for a Super Bowl Ad. Millions More to Market Considerations for Beginners, 13 Entertainment & Sports Lawyer 8 (Winter It, N.Y. Times, Jan. 30, 2017, at B1; Jeffrey Dorfman, Super Bowl Ads Are a 1996), http://www.americanbar.org/newsletter/publication/gp-solo-mag- Bargain at $5 Million, Feb. 4, 2017, http://www.forbes.com/sites/jeffreydorf- azine-index/schroder.html (“The great majority of entertainment contracts man/2017/02/04/super-bowl-ads-are-a-bargain-at-5-million/#198526a67505; are entered into and performed in New York and California. Because the Don Kaplan, NBC and presidential debate squad both fumble TV schedule, N.Y. industries are so firmly entrenched in those states, extensive regulation of the Daily News, Aug. 5, 2016 (“The NFL is the most watched, most lucrative pro- entertainment industry exists in those jurisdictions.”). gramming on TV.”). On October 9, 2016, NBC aired Sunday Night Football 5. 28 U.S.C. § 1338(a) (“The district courts shall have original jurisdiction of over the presidential debate. http://www.nydailynews.com/entertainment/ any civil action arising under any Act of Congress relating to . . . copyrights . . tv/nbc-presidential-debate-squad-fumble-debate-sked-article-1.2738999. . . No State court shall have jurisdiction over any claim for relief arising under 25. The Honorable Jerome W. Marks, deceased, is a former assemblyman any act of Congress relating to . . . copyrights.”); Shamsky v. Garan, Inc., 167 who served on the bench from 1968 to 1991. Before that he was a partner in Misc. 2d 149, 157-58 (Sup. Ct., N.Y. Co. 1995) (discussing the scope of Federal the law firm Mintz & Marks, which represented such notable celebrities as Copyright preemption in relation to state-created causes of action). actresses Joan Blondell and Eve Arden. See Legislative Resolution, http://open.

NYSBA Journal | September 2017 | 47 nysenate.gov/legislation/bill/K332-2011, March 30, 2011; N.Y.L.J., Mar. 8, 51. Id. at 458. 2011, at p. 2., col. 1. 52. 51 A.D.3d 52 (1st Dep’t 2008). 26. N.Y.L.J., Jan. 24, 1983, at p. 5., col. 3 (Sup. Ct. N.Y. Co.); NBC Ordered Not 53. Id. at 61. to Broadcast French Tennis Open Until New York Court Determines Whether Tour- 54. 1 Misc. 3d 250 (Sup. Ct., N.Y. Co. 2003), aff’d, 14 A.D.3d 430 (1st Dep’t nament’s Sponsor Breached Good Faith Negotiation Clause in Prior Contract with 2005). CBS, 4 No. 22 Ent. L. Rep. 1, Apr. 15, 1983. 55. Silvester v. Timer-Warner, Inc., 14 A.D.3d 430 (1st Dep’t 2005). 27. Id. 56. 2009 WL 641611 (Sup. Ct. Queens Co.). 28. Id. 57. Peter Travers, Crazy Love, Rolling Stone, May 30, 2007 http://www. 29. Glenn Miller Productions, Inc. v. DeRosa, 167 A.D.2d 281 (1st Dep’t 1990) rollingstone.com/movies/reviews/crazy-love-20070530; https:// (criteria met to preliminarily enjoin former ensemble member from using en.wikipedia.org/wiki/Crazy_Love_(2007_film). name Glenn Miller Orchestra); Sports Channel Am. Assoc. v. Nat’l Hockey League, 186 A.D.2d 417 (1st Dep’t 1992) (cable company fails to meet prelimi- 58. Pugach v. HBO Pictures, Inc., 2009 WL 641611, at *3 (Sup. Ct. Queens Co.). nary injunction criteria to broadcast hockey games where right of first refusal 59. Examples of accelerated judgment cases, among others, that cite to clause is ambiguous.); see Ben Bedell, Attorneys Say Judge Made Right Call in Greenfield include Ellington v. EMI Music, Inc., 24 N.Y.3d 239 (2014) (based Rebuffing Kesha, N.Y.L.J., Mar. 15, 2016, at p. 1 (judge held in Gottwald v. Sebert, upon terms of the contract, case seeking certain foreign royalties by heirs Index No. 653118/2014 (Sup. Ct., N.Y. Co.) that in seeking to void exclusive of the great composer and pianist “Duke” Ellington, dismissed pursuant to contract with record company and manager p/k/a Dr. Luke, singer p/k/a CPLR 3211), Helm v. BBDO Worldwide, Inc., 93 A.D.3d 428 (1st Dep’t 2012) Kesha failed to meet any of the three requirements for a preliminary injunc- (summary judgment granted to defendant, court finding that according to tion). contract, record company had right to license “The Weight,” a song by The 30. CBS v. French Tennis Federation, N.Y.L.J., Jan. 24, 1983, at p. 6., c. 2. Band for advertising use by AT&T), and Richard Feiner & Co. v. Paramount Pictures, Corp., 95 A.D.3d 232 (1st Dep’t 2012) (summary judgment granted to 31. Id. defendant where, as per contract plaintiff, who sold the rights to 17 Warner 32. See NBC Universal, Inc. v. Weinstein Cnty., LLC, 2008 WL4619203 (Sup. Ct., Brothers’ Motion Pictures, but with certain reservations, failed to reserve the N.Y. Co.), appeal withdrawn, 61 A.D.3d 460 (1st Dep’t 2009) (action to prelimi- right to show the films on domestic television). narily enjoin executive producer from moving highly successful reality show 60. 98 N.Y.2d 562 (2002). “Project Runway” from one cable station to a competing network). 61. The Ronettes, one of the most popular “girl groups” from the 1960s, 33. Loren v. Samuel Bronston Productions, Inc., 32 Misc. 2d 602 (Sup. Ct, N.Y. had more than eight songs on Billboard’s Top 100, including “Be My Baby,” Co. 1962). “Walking in the Rain,” and “Baby I Love You.” The trio consisted of lead 34. Germanotta p/k/a Lady Gaga v. Excite Worldwide LLC., Index No. 110967/11 singer Veronica Bennett p/k/a Ronnie Spector, her older sister Estelle, now (Sup. Ct., N.Y. Co.). deceased, and their cousin Nedra Talley. The Ronettes was the only girl 35. Miczura p/k/a Mitsou v. Knowles p/k/a Beyoncé, Index No. 162333/14 (Sup. group to tour with the Beatles. They were Grammy Award winners and were Ct., N.Y. Co.) inducted into the Rock & Roll Hall of Fame2007. https://en.wikipedia.org/ 36. Cash Money Records, Inc. v. Aspiro AB, Wimp Music AS & Wimp, Inc., Index wiki/The_Ronettes. No. 652501/15 (Sup. Ct., N.Y. Co.) Music streaming delivers sound without 62. Born in the Bronx, Phillip Harvey Spector, a Rock & Roll Hall of Famer, the need to download files of different audio formats. Streaming services such was a record producer, songwriter and originator of the “Wall of Sound” as Spotify and Pandora provide songs, generally for a subscription fee, that technology. He earned a Grammy Award for co-producing the Concert for may be listened to on all types of devices. For further definition, see Broadcast Bangladesh album with George Harrison. Mr. Spector co-wrote and produced Music, Inc. v. Pandora Media, Inc., 140 F. Supp. 3d 267, 272-73 (S.D.N.Y. 2015). the single “You’ve Lost That Lovin’ Feeling,” the song with the most U.S. air- 37. Gallina v. Giacalone, 171 Misc. 2d 645 (Sup. Ct., Kings Co. 1997) (The Fire- play in the 20th Century. He is currently incarcerated. https://en.wikipedia. flies); Poley v. Sony Music Entertainment, Inc., 163 Misc. 2d 127 (Sup. Ct., N.Y. org/wiki/Phil_Spector. Co. 1994) (Danger Danger); Sontag v. Cook, 2008 N.Y. Misc. Lexis 10854 (Sup. 63. Greenfield v. Philles Records, Inc., 160 A.D.2d 458 (1st Dep’t 1990) (defen- Ct., N.Y. Co.) (Three Mo’ Tenors). dants’ motion to dismiss was also initially made under CPLR 3211(a)(5) alleg- 38. The Drifters v. Circle Artists Corp., 13 Misc. 2d 778 (Sup. Ct., N.Y. Co. ing affirmative defenses. This part was apparently abandoned). Id. at 459. 1958); Knight v. GFR Enter., Ltd., Index No. 06549/1972 (Sup. Ct., N.Y. Co.). 64. Greenfield v. Philles Records, Inc., 2000 N.Y. Misc. Lexis 336 (Sup. Ct. N.Y. 39. 3 N.Y.2d 395 (1957). Co.). 40. New Faces of 1952, wikipedia.org, http://en.wikipedia.org/wiki/New_ 65. Greenfield v. Philles Records, Inc., 288 A.D.2d 59 (1st Dep’t 2001). Faces_of_1952 (last modified July 17, 2016). 66. Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 573 (2002). 41. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). 67. Id. at 574. 42. Brett Arnold, “Jersey Boys” Bombed — Here Are the 5 Highest-Grossing 68. Id. at 569. Broadway Film Adaptations of All Time, Business Insider (June 22, 2014), http:// 69. Id. at 572. www.businessinsider.com/highest-grossing-broadway-adaptations-2014-6. 70. Id. at 570. 43. Man of La Mancha, wikipedia.org., http://en.wikipedia.org/wiki/Man_ 71. Id. at 572. of_La_Mancha (last modified Jan. 26, 2017). 72. Id. at 574. 44. Man of La Mancha (film), wikipedia.org., http://en.wikipedia.org/wiki/ Man_of_La_Mancha (film) (last modified Jan. 7, 2017). 73. Id. 45. Man of La Mancha 1972 | Movie, tvguide.com, http://www.tvguide.com/ 74. Voom HD Holdings LLC v. EchoStar Satellite L.L.C., 93A.D.3d 33 (1st Dep’t movies/man-of-la-mancha/review/126452/ (last visited Feb. 2, 2017); Man 2012) (case settled). of La Mancha (1972), imdb.com, http://www.imdb.com/title/tt068909/ (last 75. Twenty One Pilots, an alternative music duo, received the 2017 Grammy visited Feb. 2, 2017). Award for Best Pop/ Duo Group Performance and the 2016 Billboard Music 46. United Artists Corp. of Puerto Rico v. Regency Carribean Enter., Inc., Index Awards for Top Rock Artist and Top Rock Album. https://en.wikipedia.org/ No. 9585/73 (Sup. Ct. N.Y. Co.). wiki/TwentyOnePilots. 47. United Artists Corp. of Puerto Rico v. Regency Carribean Enterp., Inc., 47 76. In re Atlantic Recording Corp. (Reddit Inc.), Index No. 156210/2016 (Sup. A.D.2d 816 (1st Dep’t 1975) (affirming denial of defendant’s motion to dis- Ct., N.Y. Co.) (application withdrawn; petitioner investigated alternative miss the action on forum non conveniens grounds); 54 A.D.2d 846 (1st Dep’t sources to identify poster). 1976) (affirming denial of defendant’s motion to vacate the note of issue and for additional disclosure). 48. CPLR 3211(a)(1). 49. 1 N.Y.3d 452 (2004). Ray Evans died in 2007. 50. Id. at 455.

48 | September 2017 | NYSBA Journal NEW MEMBERS WELCOMED

First District Michelle Chun Deepthi Gopalakrishna Joseph E. Krause Catherine Degnan Nagle Victoria Oiza Abraham Danielle Ashley Clark Nicholas Paul Griffin Austin H. Krist Sarah Nasser Erica E. Aghedo Reon Cloete Kaydene Kenisha Grinnell Lindsay Marie Kroyer Malak Nassereddine Guadalupe Victoria Aguirre Eli Jacob Cohen Timothy Frank Grosso Zhandos Kuderin Frederick Koerner Neary Rachel Leigh Albinder Laura Taylor Coley Joshua Zachary Gruenbaum Ashley Suzanne Kuempel Jeffrey C. Nelson Hilary Eva Albrecht Patrick Joseph Collopy Daily Guerrero Brito Ryan Alan Kutter Charlotte Kathleen Newell Steven J. Alizio Grace Elizabeth Condro Andre Alexander Guiulfo Paul Michael Lacaruba Jacob E. Newman Carolina Allodi Matos De Megan P. Conger Andrew Inad Haddad Sarah Marisa Lachman Mandy Thuynghi Nguyen Andrade John Gennaro Conte Jude Souhail Halawi Thomas Madison Lair Timothy Michael O’hara Yehuda Alpert David A. Coon Rebecca Kay Hall David Samuel Lavian Nia Kylie Oates Cesie Chanel Alvarez Christopher Jon Cooper Diana Hamar Lelia Alexandra Ledain Joshua H. Ontell Erik Johan Andren Marissa Beth Cooper Jakarri Hamlin Milo Ledoux Derek Michael Osei-Bonsu Taylor Patricia Andrews Steven Michael Costanzo David Gordon Hanno Courtney Michelle Lee Emi Otsuka Justin Taylor Arabian Reena Costello Erin Mayne Ackland Hanson Grace Koeun Lee Stephanie G. Paeprer Sandy Araj Emily Alice Cross Shannon Anne Hayes Hugh B. Lee Edward Panchernikov Sam Nadeem Ashuraey Alissa Marie Curran Amy Ke’ana Wadsworth Maritza Leon Jimenez Jonathan Walter Panzl Emily Elizabeth Atwater Nicea Judith D’annunzio Helfant Eunice Leong Nirali Sanjay Parikh Jeremy P. Auster Matthew D’Auria Alyssa Marie Helfer Alexandre Leturgez-Coianiz Jennifer Park Daryn Michael Awde Maria Paula Mccarty Da Erika Shera Herman Alexander M Levine Bhavika Dilip Patel Ashiq-aly Aziz Silva Jennifer Marie Hicks Katherine Theresa Lewis Reshama Jitendra Patel Stephen M. Bacigalupo Lawrence Montrey Dahl Jonathan Gabriel Hiles Ashley Christina Lherisson Samir K. Patel Niechao Bai Caitlin Dance Bryan Matthew Hogg Alvin Li Iricel Elizabeth Payano Scott Cameron Bailer Pouneh Davar-Ardakani Ye Hong Karen Ruo Li Michal Pearl Michael Travis Barkoff Tracy Lee Dayton Jennifer Hose Violeta Luiza Mendes Stephen Pearson Audrey Elizabeth Bartosh Andrew Dean Douglas Leander Howell Libergott Daniel Alejandro Pedraza Mahfouz Elias Basith Christopher Glover Demaras Zhaohua Huang Yun Joo Lim Lana Leah Pelletier McCrea Benjamin Ian Bassoff Timothy Carey Dembo Hui-ling Hung Daniel Lin Marissa Erin Perlmutter Jessica Maria Batlle Ryan C. Dewey Danielle Elizabeth Hustus Mindy Beth-jane Lin Moshe G. Peters Elaine Ashby Baynham Kristine Marie Di Bacco David William Inkeles Stephen David Linley Kyle George Petrie Eliza Beeney Carolina Diaz-martinez Shanelle Zubin Irani Laura Rees Logsdon Agbeko Cynthia Petty Elena Jessie Bel Corey Alan Dietrich Christine Isaacs Cecilia Lopez Santiesteban Petra Plasilova Alison Rebecca Gross Jose Miguel Diez Scott C. Israelite Jenna Aviva Lowy Bryan Robert John Podzius Benedon Melissa Danielle Digrande Enrique William Iturralde Matthew Nicholas Lu Kacy Louise Popyer Kevin D Benish Ivana Djak Brook Katharine Jackling Karolina Maria Majewski Peter Pottier Brian M. Berliner Brianna Flaherty Dollinger David Matthew Jackson Juan Miguel Maldonado Dominic Ryan Price Caitlyn Nicole Bingaman David Alexander Donatti Kulani Asafa Jalata Krista Nicole Mancini Casey Ann Prusher Justin Samuel Blash Taylor Bridget Dougherty Brooke Jarrett Meredith R. Mandell Louis Ferdinand Quagliato Theresa Dawn Bloom Caroline C. Dreyspool Dorothy Aileen Jenke Hannah Murray Marek Brenna Ellen Stewart Songyin Bo Christopher Vincent Drury Michael David Jenks Jacqueline Ashley Marino Rabinowitz Tsedey Abai Bogale Nathaneel Reyes Ducena James Robert Jennings Julie Anne Marling Oren Rafii Tess Bonoli Michael Andrew Dvorak Jason Wheeler Joffe Tanya Liselle Martinez- Tara Lalita Raghavan Lowell Perigord Bourgeois Matthew Ryan Edwards Kristen Alease Johnson Gallinucci Adam Roland Rahman Alexia Jessica Boyarsky Alexander Eugene Ehrlich Loretta Ann Johnson Sarah Joanne Mcateer Marc Ramirez Cagla Boylu Ryan Lewis Eickel Peter James Johnson Kelsey Lynn Mccarthy Sahana Rao Eric Avery Brandon Andrew Marsh Eisbrouch Bridget Gaines Johnston Jessica M. McGrath Ariane Raymondo James P. Breen Emily Catherine Ellis Andrew D. Kabbes Duncan Kenneth Ross Mckay Margaret Wilson Reis John Lavelle Brennan Richard D. Emery Ishita Kala Timothy Martin Mckenzie Sofia Reive Marissa Anne Brittenham Robert Fanning Joseph Kalis Grace Anne McReynolds Gregory Charles Richmand Willimina S. Bromer Michael Reuben Farkas Courtney Frances Kane Ryan Michael Melvin Amy Louise Robertson Alexander Edward Brooks Kirk Daniel Fauser Sung Yong Kang Carole Menard Henry Mack Robinson Melisa A. Brower Ashley Camille Ferguson Andrew M. Karp Silvia Menendez Gonzalez Alexandra Kelly Roche Adam Brownstone Marissa Katryna Flood Benjamin Alexander Kastner Andrew Mickler Sennett Michael Rockers Julian Edward Bulaon Sean B. Flynn Melissa Evana Katsoris Benjamin David Miller Katherine Suzanne Ceisler Jenna Anne Burnbaum Lisa Ann Folkerth Kim Elana Kaufman Jacob Kenneth Millikin Rookard Jonathan Michael Burns Rebecca Anne Forman Caitlin Quinn Kelley Hunter Brooks Mims David S. Rosen Anthony F. Buscarino Alyssa Rose Fox Audrey Seong Ah Kim Jie Min Kathryn L. Rosenberg Emily Jakoba Byl Jesus Franco Christina Minsun Kim Ruthanne Minoru Corey Rosenholtz Andres M. Caicedo Tara Ganapathy Daniel Kim Ahmed Mohsen Mohamed Todd A. Rossman Robert Ross Campbell Caroline F. Gange Gina Kim Mariela Jennette Monegro Samuel E. Roth Anthony Lawrence Jared Ian Gans Hyosang Kim Linda Moon Daniel Philip Roy Capobianco Jennifer Nicole Garnett Lauren Sei-hee Kim Carolina Maria Morales Joseph Mario Rubbone Dennis Gregory Caramenico James Taylor Gaskill Leeann Kim William Joseph Morici Lee J. Rubin Anne Elizabeth Carney Lucas Robert George Michelle B Kim Michaela Marie Morr Michael Paul Rubin Zachary Willis Chalett Teny Rose Geragos Alexandra Zenner Kleiman Denise Louise Morris Daniel B. Rudofsky Sophie Xin Chan Eliezer Michael Gewirtz Yuliana Kletsun Teresa Dorothy Morrison Francesca Rufin Ravi Chanderraj Sami Basem Ghneim Jordan Tyler Klimek Lawrence C. Moscowitz Yuki Sagawa Mina Chang Doran Jacob Gittelman John Vern Knight Alma Marija Mozetic Vatsala Sahay Travis Samuel Cherry Sarah Rachel Goldfarb Thomas Paul Koester Clifford Dankwa Mpare David Salter Andrea Nicole Chidyllo Zoey Gabrielle Goldnick Steve Koo Ryan Christopher Mullally Allison Faith Saltstein Jaeyoung Choi Dana Ethel Goldstein Roxanne M. Kornreich Amelia Kathleen Murphy Sarah M. Salvia Yoon Yuk Choi Michael Brandon Goldwasser Anna Maria Kozlowski Christina Murphy Sybil Nana Ama Efrima Sam Manav Chopra Xinyi Gong Jason David Kramer Alok Krishna Nadig Andres Antonio Sardi Garcia

NYSBA Journal | September 2017 | 49 Matthew Joseph Savoff Christian Witzke Lawrence Crane Moscowitz Sixth District Mariah A. Martinez Afruz Sayah Christian Edward Witzke Atusa Mozaffari A Adigwe Mary Caitlin McDonald Paul Edward Schied James Anthony Wolff Kwok Kei Ng Srishti Jain Ashraf A. Mokbel Carly Danielle Schiff Adela Sarah Woliansky Brandon Huy Khoa Nguyen Joseph Robert Kirby Neelu Thomas Pathiyil Harrison Schwartzman Jaimie Wolman Thuy-an Thi Nguyen Maria N. Manning Dana Pellegrino Rachel Marie Searle Eileen Woo Robert Magner O’Connor James H. Mayfield Mary Mclean Pena Matthew Ellis Seitz Chad Woodford Nonney Onyekweli Sarah Morrisson Silpa Rao Sara Antonia Shackleford Tania Simone Rose Woods Hillary Ann Packer Brianna Marie Strope Jacob Schwartz Rachel Austin Shapiro Lu Xu Zachary Payne-Meili Vaughan Robert H. Shadur Liang Shu Ho Young Yang Alexander F. Peacocke Emma Shamo Seventh District Nachum Danny Shulman Anne Reid Yearwood Emily Morgan Pearl Katherine Mara Ainlay Katherine Theresa Adamides Fabio Roman Silva Nicole J. Yoon Sarah Allison Pfeiffer Steiner Ryan Wolfe Allison Stephen Manuel Silva Yuan Yuan Michael Kevin Piacentini Amanda Danielle Tarallo Tyler Randy Blake David T. Silver Luke Zadkovich Katie Elizabeth Renzler Joseph Thomas Richard Catalano David Simins Alicia Qimin Zhang Andrew Ritter Sheuvaun Felicia Vernon A. Jane Grimes Chambers Michael Eric Singer Wen Zhang Margaret Celeste Rohlfing John A. Vitagliano Jeffrey John League Adama Varsey Sirleaf Alex Stone Zuckerman Norma Anastacia Roper Patrick J. Welch Gregory M. Leathersich Courtney Gabrielle Skarupski Monisola Oyinkansola Second District Sean McCabe Tenth District Margaret Jene Holm Salaam Ehsan Akbari Lakeshia McCloud Matthew J. Arpino Smilowitz Jaime Sanchez Janine Ann Balzofiore Jennah Marie Michalik Harrison H.d. Breakstone Monica Smith Kevin Scura Daniel Thomas Banaszynski Constance Patterson Benjamin L. Broder Joseph Kyle Snapp Sylvester Joseph Sichenze Benjamin Wade Baumgartner Jieting Tang Constance Christie David Joseph Snyder Geoffrey M. Stannard Maureen Belluscio Benjamin Ryan Williams Constance Joanna Christie Nathaniel Eisten Sokol Jhe-yu Su Elise Constance Bernlohr Dena Wurman Devin Scott Cohen Delia Anne Solomon Eric Victor Tabache Gregory Paul Bitetzakis Andrew Barrie Curran Matthew Sontag Summer Elynda Tinnie Eighth District Stefania Boscarolli Eric A. Curtis Sehzad Mohammad Sooklall Esther Traydman Kristin Elizabeth Bender Alexandra F. Briggs Carissa Ann Danesi Jeffrey Mitchell Sorkowitz Max Augustine Wade Anthony David Chabala Lauren Nicole Brown Margaret Marion Darocha Adam Sasan Sowlati Cara Alicia Cox Umar Abdullah Cash Third District Tiffani Marie Diprizito Sara Batya Spanbock Ashley Ann Czechowski Andrew Chi Brenda Baddam Christopher Eisenhardt Stephen John Alfred Speirs Melanie Ann Daly Mariel Cohn Brandon Batch Jamie S. Eliassaint Michael Atkerson Stachiw Jacob G. DiMatteo Alejandra Contreras Macias Tyler Phillip Broker Brandon Esquenazi Mitchell Russell Stern Jason Richard James Fleischer Jeffrey William Coyle Sandra Calhoun Christopher Steven Germaine Nicole Yvonne Stoddard Hannah Mary Goldsmith Kelsey Marie Crowley Drew Alexander Chisholm Jennifer J. Goodwin Amy Su Donald J. Herbert Joseph Francis Dell’aquila David W. Crossman Daniel M. Huttle Terence Sean Sullivan Sarah Elizabeth Hicks Charles Karl Diamond Andrew James Dipasquale Sofia Iqbal Matthew B. Sumner Keli Iles-Hernandez Thanh Truc Doan Eric William Dyer Lauren Michelle Jadevero Weixiao Sun Kaeleigh Clara Jessen Marjorie Brigetta Dugan Sara Luz Estela Sean A. Jefferson Thomas Quaid Swanson Megan Suchitra Kale Mallory Winfield Edel John T. Judd Elana K. King Brittany K. Sykes Seokchan Kwak Erica P. Englander Sarah M. Klein Jessica M. Klersy Adam John Szklanny Jamila Afiya Lee Chris Fennell Michael Thomas Koes Sarah Nicole Labia Christine Marie Taverner John Pino Marzocchi Daniel Joseph Fischer Andrew Jordan Matott Keely Marie Lang Nicole Taykhman Christine D. McClellan Hannah Perrin Flamm Joseph C. Mazza Joseph Anthony Lupo Ashleigh Victoria Taylor William Monte Ciara Iren Foster Calee Oas Jonathan Paul Manfre Robert Taylor Kaili Marie Mutka Duncan Alexander Fraser Jared J. Pellerin Dennis McGrath David Teitelbaum Madison Leeann Ozzella Jonathan David Frisby Vanessa M. Rodriguez Declan McPherson Pengtao Teng Danielle Pelfrey Duryea Marlee Chelsea Galvez Casandra Stephenson Kathleen Miller Daniel Aaron Teplin William Pike Babak Ghafarzade Patrick Ryan Totaro Krista C. Miller Brian Edward Thayer Vilena M. Ramini Erica Regina Gilerman Jeffrey A. Mondella Lynn Alexandria Thomas Fourth District Victoria K. Roberts Mellissa Gobin Nicole Rae Morales Alexander Rowland Tiktin Umberto Nicodemo Gargi Sen Jeremy Maxwell Green Jacqueline Marie Morley Feliciano Ernesto Tomarelli Angilletta Jenna M. Turco Noah Shalom Greenfield David Mark Muller Rubio Melissa Benson Sarah Washington Benjamin A. Griffith Kevin Francis Murphy David G. Ullman Kirsten Dunn Erin Lynn Whitcomb Morgan Devereaux Guinnip Zarah Tehseen Naqvi Matthew A. Ulmann Thomas S. Holmgren Jill Marie Wnek Zeynep Gulsen Nicholas A. Passaro Ellen Grace Van Cleave James McPartlon Margaret Helen Wydysh Eric Ross Haren Danielle Alesha Robinson Carolina Louise Veltri Philip Takacs David Kautsky Hausman Ninth District Brooke Salvatore Patrick T. Venter Philip Jules Takacs-Senske Michelle Michal Herzog Michael Christopher Eric Robert Sands Peter Vizcarrondo Michael Patrick Hogan Fifth District Anderson Christopher Ross Theobalt Alexandros Vourlidis Kenji Horiuchi Breanna L. Avery Matthew Alexander Bialor Bernard Tsepelman Brittany Morgan Wagonheim Kulani A. Jalata Benjamin Herbert Bagenski Steven M. Bouknight Samantha Paige Turetsky Erica Michelle Walker Patricia Jean-Baptiste Megan R. Hartl Sarah Croak Katherine Michelle Umanzor Kevin Michael Walsh Brian Eneoreuwu Jones Consuelo Valenzuela Deanna Marie Dicaprio Alexandra Rae Wolff Lu Wang Anthony R. Jordan Lickstein Kevin K. Diffley Michael Yazdanpanah Susan Wang Kaitlin Beth Keenan John Maine Kenneth Eng Sean Patrick Young Ting Wang Jeffrey Francis Kinkle Nathalie Marin Donald R. Gordon Xiao Wang Eleventh District Jeremy Bell Koegel Kevin John Peterman Michael Joseph Griffin Jason Andrew Wasser Steve J. Ahn Tara Kumar Alexandra O. Pietropaolo Mitchell Barry Karp Alex Evan Waxenberg Lawrence G. Campbell Meghan Elizabeth Lenahan Laura D. Rolnick Tara Nicole Lombardia Grayson Cooper Weeks Matthew Carpinello Kseniya Lezhnev Erica Jacobson Rube Caesar Andre Lopez Yakov T. Weis Jeffrey M. Carr Patrick John Looby Josiah James Thorogood Elizabeth Anne Lynch Jason Michael Weltman Raul Armando Carrillo Brandi Michelle Lupo Paul Jeffrey Tuck Michael Owen Lynch Rebecca Elizabeth Wexler Jennifer Chan Linden Miller Steven J. Manganelli Paul Anthony White Rudgee Standley Charles Julio Enrique Mojica Michael Marchman

50 | September 2017 | NYSBA Journal Jinha Chung Elysia Rachel Ruvinsky Carl Henrik Braennberg Ijeoma Uchechi Eke Jessica Lee Hunter Brandon Robert Coyle Benjamin Rory Silver Jacob Brainard Vsevolod Elentukh David Hurst Le Cui Whitney Kate Sullivan Michael Brandon Rachel Elizabeth Endick Ajani Barcley Husbands Rachel Dekhterman Erin M. Teresky Romiesha J. Briscoe Mendtuvshin Enkhtaivan Emily Louise Hussey Rucha Abhay Desai Lourdes Ann Vetrano Jason M. Brisebois Thomas Micheae Enright Thomas Huynh Lino Alberto Diaz Alexandra Zoe Brodsky Michael Ray Epperly Robert Joseph Ingato Thirteenth District Kelsey Michelle Dickman Amanda Louise Brosy Murat Erbilen Joseph Louis Ingrao Olga Aleinik Brandon Richard Fetzer Matthew Francis Bruno Samanta Eremciukaite Lakeysha Greer Isaac Joseph W. Antonakos Alisa Yakovlevna Gdalina Jonas Bruzas Ali Can Ergur Aki Ito Eric Aquino Michael James Golia Samantha Bui Brian Phillip Eschels Sachie Ito Diego Oswaldo Barros Adriana Lina Greco Jonathen Frank Bullwinkel Qihui Fan James P. Jaconski Jacqueline S. Bruno Reginald Guerrier Joshua Burk Xiao Fang Samuel Aaron James Giovanna Marie Colasanto Emily Hartfield Harris Jo-Yu Burlet Chen Kelly M. Fay Rodriguez Javier Rafael Jaramillo Michael Frank Cuttitta Jesse Daniel Herman Melissa Leigh Buterbaugh Teng Feng Roosevelt Jean Kristen Epifania Anthony Jules Holesworth Kathryn Butler Karen L. Fiorelli Jaehoon Jeong Scott Higgins Shoba Jaglal Catalina Cadavid Justin G. Fisch Hansen Ji Alina Kipnis Amber Lynn Johnson- Michelle Eve Cafarelli Chelsea Ann Fish Yifan Jiang Matthew David Oginsky Vigouroux Brian Patrick Caldera Filka Forkin Ruoyang Jing Louis Thomas Pecora Jana Junuz Thi Minh Cao Roxanna Camile Francis Emily Louise Johnson Kathryn Kimball Ramos Robert A Kansao Jessica Lynn Caplin Daniel Joseph Freshman Louis J. Johnson Anthony Sears Amanjot Kaur Matteo Capponi John Phillip Fritz Paula Mary Luciana Joan Artem Skorostensky Danielle Crystal King Jonathan Cardenas Shunichi Fujioka Jones Payal G. Thakkar Keith King John Joseph Carvelli Krista R. Fuller Thomas Buckner Jones Stephanie Krent Out of State Nicholas Christopher Cavallo Dale Robert Funk Min Jong Joo Jamie Keely Kwasniewski Bria Michelle Adams Jessica Cavanagh Christopher J. Fusco Kassandra Genevieve Jordan Golda Lai Nur N. Adnan Christophe Cavin Rossana Gallego Winifred C. Jow Bryan T. Lew Monica Aguinaldo Ivana Chabanova Luisa Gamboa Hat Bit Jung Eric Liu Monica Frances Aguinaldo Pui Hei Chan Yiming Gao Lisa Jeanne Jurick Liam Michael Lowery Aicha Ahardane Wai Hei Chan Wenting Ge Matthew L. Kahl Giulia Marino Doua Abdulrahman Alattas Chialu Chang Louis Michael Gerbino Richard Thomas Kaltenbach Nipun Marwaha Nicolas Arthur Alfonsi Samuel H.S. Chang Alexa Leann Gervasi Eve Wing-Wai Kan Jacqueline Adele Meese- Dean Yousif Ali Seungmo Chang John Joseph Giampa Spruti Shantesh Kanekar Martinez Shifa Jamal Alkhatib Mihir Chattopadhyay Cameron James Gibbs Seonhwa Kang Ruth Merisier Mohammed Almarzouki Queping Chen Devyn Glass Elizabeth Kappakas Ashley Montana Minett Alejandro Jose Alvarez Ruolan Chen Kristian William Gluck Dai Katagiri Teraine Okpoko Loscher Sze An Chen Sean Evan Goldhammer Kate Elizabeth Kennedy Arshi Pal David Wayne Anderson Ying-Chu Chen Reynaldo Gonzalez Aruna Maya Khan Sijin Park Daniel Andrade Jacintho Heide Oil-gei Cheuk Mara E. Goodman Omer W. Khwaja Mital Bharat Patel Evangelia Andronikou Hyungsuk Choi Michelle L. Goodman Celina Kilgallen-Asencio John Patrick Prager Zohra Anwari Won Young Choi Elena Goor Barron Jieun Kim Nicole Rella Ryuta Aoki Youngjin Choi Meghan K. Gorman Cohen Leanne Sung Kim Brianne Noelle Richards Rebecca Hollins Arnall Margaux Andrea Chouchan Colin J. Gorman Woo Joong Kim Christian Chayce Sae Ivan Atochin Sumeet Chugani Tracy Josephine Grant Yongtae Kim Adam Ivan Robert Tzi Guan Aviv Avni Esther I. Chung Aurelien Pierre Chri Gredy Yoo Jin Kim Seeto Lijie Bai Jacqueline E. Cistaro Robert C. Grimal John M. Kitchura Russell L. Shapiro Alexander John Baker Kori Marie Clanton Alexander Grimm Holly Klarman Anil Singh Surya Bala Walter D. Clapp Jessica L. Grimm Jonathan Klein Patrick Martin Steel Gillian D. Ballenger Edward T. Colbert Carmella Marie Gubbiotti Daniel Patrick Knoth Vasilios Stotis Rupali Bandhopadhya Eduardo Oscar Colon-Baco Nicole R. Gutierrez Youngbok Ko Sakeena Trice Rachel Bangser Thomas Michael Corsi Lisette L. Guzman Anahit Kokobelyan Lauren Josephine Tucker Rachel Emily Bangser Jennifer Elizabeth Cranston Anael Hadji Scott I. Korf Juan C. Velez Arteaga Fang Bao Brian Scott Cunningham Dillon Joseph Hagius Devika Kornbacher Zixuan Wang Hanyu Bao Elizabeth Frances Curran Darian Gerrod Hands Shirah Michal Kovnat Travis Graham Ward Dana Lauren Barile Alice Da Silva Lima Lovchik Erika Lea Hanson Denise Krall Eric London West Pilar Baron Allue Gregory Damico Daniel Fife Hardcastle Elie David Krief Gabriela Wong Noah Barr Christopher J. Daniel Blake Harley Spencer H. Kuhner Si Yang Alice Noel Barrett Roujou De Boubee Jeffrey Hampton Harris Ruchira S. Kulkarni Jaehee Yoo Palash Basu James DeBartolo Melissa V. Harrup Gani Kuseyri Erica Jean Zaragoza Yetonde Codjo Beheton Jessa Irene Degroote Devin James Hartley Hyung Kyun Kwon Haizhan Zheng Opeyemi Mensah Felix Bello Anushree Jayant Dehadrai Seth Patrick Hays Sze Hou Lam Wafa Ben Hassine Aushree Dehadrai Sean Healy Xi Lan Twelfth District Katherine Strike Bentel Lorenzo Delzoppo Amanda Lynn Helms Erika Judith Larsen John Osei Bonsu Derek Matthew Berry Andrey Demidov Ashley Nicole Higginson Katarzyna Olga Lasinska Alana Anne Brady Gregory A. Berry Decheng Deng Jason Harrison Hilborn Pieter Lavens Drita Brija Jens Frank Beyrich Dexin Deng Andrea Michelle Hill Franklyn C. LaVrar Kelsey Maya Edenzon Roshni V. Bhalla Lan Deng Annemarie L. Hillman Megan Lebo Atenedoro Gonzalez Karn Bhardwaj Jacopo Destro Emily Brooks Hobbs Da Eun Lee Jill Lauren Greco Francesco Luigi Bianchi Colin Andrew Devine Holly Jacquelin Hoch Da Sun Lee Michael Z. Jen Giuseppe Bianco Christine Elizabeth Doelling Greta Hogan HyeMin Lee Enjole C. Johnson Michael John Biles Dmytro Dolinin Ye Hong Ichia Helen Lee Danny Woong Lim Michael John Blayney Marie Anne Duarte Cabral Michael James Horne Jihye Lee Ora Laine Lupear Alex R. Blum Arbion Duka Die Hu Juyon Lee Joseph Vincent Maniscalco Lillian M. Boctor Miles Tyler Eckardt Zhenchao Huang Kyehyung Lee Oscar Rene Montes Paul Oluwaseun Bolaji Miles Eckhardt Julie Lynn Hunt Michael Wookeun Lee Olivia Orlando Theodore Joseph Boutrous

NYSBA Journal | September 2017 | 51 Samantha Lee Osvaldo Miranda Diaz Wanjie Ren Jason Michael Smith Pingping Wang Kurt Andrew Leeper Eric Anthony Mitchell Jennifer Rochelle Rentrope Nicholas Charles Smith Scarlett Yu Wang Ana Corina Lefter Yuichi Miyashita Odysseas Repousis Timothy Harold Smith Weiping Wang Chi Lei Shinji Mochizuki Alexandra Devon Ressa Ellen Karen Snyder Zhou Wang Qianwen Lei Martin Louis Monaco Mara Redlich Revkin William Snyderwine Julie Goodwin Weber Andrew John Molen Lena Amanda Cristine Karice Davina Rhule Iryna Sokhatska Wen Wei Alexander G. Leone Monteagudo Brandon Wayne Rice Dara Solan Karina Emilie Weichert Jaimie Michelle Lerner Burke Johnson Montgomery Heather Aley Richardson Jinmeng Song Fabio Weinberg Crocco Malisa Yuen-Quan Leung Rikkilee R. Moser Bethany Rishell Joshua David Sorensen Stephanie Marie Weinert David Eric Levine Xiaozhou Mu Caroline Riley Robb Alison J. Spark Rebecca Ellen Weinstein Camille Levy Tess Cassandra Muckensturm Paul G. Roche Brian D. Spector I-hsien Weng Jiahong Li Maureen L. Murat Patricia J. Rogers Stephanie Nicole Spies Donovan Anthony Westbrook Jingdao Li Patrick Robert Murphy Alexandra Kate Roisman Eugenia Chung Srodoski Anna Gwen Wettstein Junjie Li Pauline Thecla Muto Cyprianne L. Rookwood Darci Stanger Brandon R. White Mengdie Li Mark Myers Mark Rosenthal Dana Sterling Kyung Rok Wi Tao Li Soojin Na Joel H. Rothstein M. Wilson Stoker Amber R. Will Zhiyao Li Joyce Lee Nadipuram Rodolphe Andre Georges Michael Wilson Stoker Ethan Lee Wilson Valerie Liang Yuta Nakagawa Ruffie Marshall L. Stone Hyeonjeong Woo Daphne Zo Lin Mayuko Nakamura Emily Escher Rush Yusuke Sugihara Patricia Margaret Wood Eric M. Lindenfeld Gabriel Nascimento Jeffrey Jason Saavedra Daniel Lee Sullivan James P. Woods Dean Lintzeris Rodrigues Freitas Vyron Sacharidis Taoran Sun Mengchao Wu Yakun Liu Harry Nettlau Shahrzad Sadjadi Tian Sun Qiaosong Wu Yiqiao Liu Damon G. Newman Dara Sahab Tautvydas Sutkus Wenyuan Wu Catherine Claire Lobb Irene Ng Jaclyn M. Saltzman Victoria Marie Anne Syreizol Difei Xiao Tiziana Londero Joseph W. Njeri John Anthony Salvatore Andrew Simpson Tabashneck Qingtao Xie Juan David Lopez Guevara Ciara O’Grady Evan Sampson Kyle Michael Tait Ying Xiong Eric Antwan Love Brendan Joseph O’Malley Daniel Sanchez Cordero Alan W. Tamarelli Qiang Xue Brian Lowenberg Jennifer Obodo Canela Marie Tanaka Mayu Yamaguchi John-Paul Lujan Norbert Odonwodo Maralee N. Sanders Francis Tanczos Lou Yan Nathaniel Robert Luken Naoki Ogawa Anthony Lawrence Rohan Taneja Byunghoon Yang Xue Cher Luo Lolade N. Ogbuagu Sanderson Deborah Pei Le Tang ByungHoon Yang John Patrick Lynch Luca S. Ognibene Livia Santoro Zheng Tao Jing Yang Richard George Lyons Chinwenwa Chioma Ohanele Yaa Serwa Sarpong Oleksandr Tataryntsev Lei Yang Darcy K. MacDermid Rikiya Okuhara Sanal Sasankan Shantel N. Tatem Zimu Yang Lucas Coltro Avellar Olamipeju Margaret Olayomi Dominique Renee Scalia Sapna Thakker Jin Ye Machado Tania Joyce Omana Amador Hans Philipp Scheibenpflug Christie Annie Theodore Zi Ye Trevor Austin Macneill Jerome Orlhac Benjamin Schiff Dana Michelle Thompson Jimmy Kiwon Yi Ken H. Maeng Anthony James Ortiz Evgeny Scirto Ostrovskiy Ilene Marie Tognini Kaori Yokota Rebecca A. Magenheim Alexander Ostrovsky Alexander Self Hiraku Totoki Sylvia Siew jen Yong Catherine Margaret Maguire Emi Otsuka Ryan Henry Sellinger Taylor Elizabeth Trapp Kazuo Yoshida Matthew B. Mahoney Sarah Ann Padove Roman Semenov Sakeena Fatima Trice Ahmad Fadi Yousef Johan Maitland Mansi Parikh Diana Yeonkyung Seo I-ting Tsao Kay Kyungsun Yu Kanwal Majeed Jisoo Park Ehsan Ullah Shah Ivan Tukhtin Lingling Yu Avnish K. Mangal Sungchoon Park Fanvin Fang-Yun Shen Amanda Tuninetti Mia Yugo Molly Elizabeth Manson Wonsuk Brian Park Jian Shen Stephen Turner Joseph L. Zales Matias Ricardo Manzano Scott George Parkin Kimberly Shin John Leonhard Urban Shawn Zaman Sabina Mariella Keith Andrew Pedrani Yasuko Shiokawa Ashley Valdes Themelis Zamparas Bruna Maronesi Jin Peng Tsuyoshi Shirakawa Alejandra P. Valenzuela Themelis Zamparas Eileen Catherine Marshall Qianwen Peng Stephanie Ann Short Bram Lieven Van Yihong Zhand Justin Gregory Martin Brian J. Perbix Brittany Shoul Cauwenberge Hong Zhang Raymond Vincent Martin Katheryn B. Pereyra-Caldwell Lauren Shryne David Allan Van Grouw Jingwei Zhang Inti Martínez-Alemán Alfonso L. Perez-Diaz Paulo Alberto Tejada Nicole Laurianne Vander Menglu Zhang Lena Rochelle Martinez- Anh Pham Sicangco Meulen Shaowei Zhang Wolfinger Meghna Philip Joseph William Silva Yuvaktep Vann Yihong Zhang Liliana Mascarenhas Letitia Z. Pierre Lukas Simas Anna Vikulova Junteng Zheng Coutinho Mariia Piontkovska Zachary William Simon Bridgette Villegas Xu Zheng Kanwal Maseed Margaret Poissant Nehal Singhal Carlos Vina Bas Yunhan Zheng Masafumi Masuda Margaret Anne Poissant Alexandra E. Skarka Jessica Wall Chao Zhou Maryssa Alexa Mataras Svetlana Portman Sofia A. Skarlatos Joshua Shu Wan Linxi Zhou Jacob A. Matlin Colleen K. Powers David Slim Danxu Wang Li Zhu Yuki Matsumoto Geoffrey Ryan Pruzinsky Sarah Hartman Sloan Feicao Wang Ye Zhu Hiroaki Matsunaga Shi Qiu Bryant Smith Jonas Qing Wang Elaine D. McCafferty Abdulaziz Abdulla Rafeia Mary Katherine McClelland Ammad W. Rafiqi Stephen Gary McConville Alexis Antoine Marie Raguet David Christopher Mcdonald Anthony H. Raime In Memoriam Emily E. McIntyre Charles T. Raines John F. Mckeon Renuka Raman Jana S. Behe-Kinneston Thomas J. Mitchell Sascha Meisel Elsa Ramo Albany, NY New York, NY Jenniffer Melendez Nita Rao Bruce D. Ettman Samuel A. Schorr Ernesto Mendieta Marquez Carl R. Rausa West Orange, NJ Scarsdale, NY Xiangnan Meng Stephen Ray Jing Miao Pasha Razi Gary R. Miller Roxanne Micca Justin A. Reinhardt New York, NY Alexis C. Minz Na Ren

52 | September 2017 | NYSBA Journal ATTORNEY PROFESSIONALISM FORUM

To the Forum: taking over the case. This firm’s busi- mind when communicating with an I am dealing with an adversary who ness model appears to be based upon adversary. communicates very differently than I taking over cases from other attorneys The Standards of Civility are guide- do. We had a discovery dispute, and and does not have a very good reputa- lines intended to encourage lawyers, I would spend time drafting specific tion in the local legal community. Can judges, and court personnel to abide letters with references to statutes, case I ask my client about what the other by principles of civility and decorum law, and Bates numbered documents. attorney is saying about the case? Can and “to confirm the legal profession’s After I would send out the letters, I I warn my client that there are rules rightful status as an honorable and would immediately get back a vague about how attorneys solicit clients and respected profession where courtesy one-paragraph response that didn’t that the other attorney may have vio- and civility are observed as a matter address any of the issues I raised. lated them? Can I contact the other of course.” However, the Standards of I tried calling him, but his number attorney to explain some of the legal Civility were not intended to replace, always went directly to voicemail, and aspects of the case that my client may or even supplement, the Rules of Pro- he would only respond, days later, not fully grasp? Even if I can talk to my fessional Conduct. Instead, they are with another vague email. I expressed client or this other attorney, should I? essentially an honor code outlining my frustration with the attorney and Very truly yours, “best practices” and professional cour- finally received an email saying that Attorney Worrywart tesies lawyers routinely observe and due to my “excessive” communica- extend to their colleagues. Not surpris- tions with him, he was sending me Dear Attorney Worrywart: ingly, many of these “best practices” a list of “rules” that I was supposed We can all agree that efficient and concern lawyer-to-lawyer communica- to follow going forward. Some of the effective communication is vital to tion. rules seemed outlandish: “1) Do not the practice of law. The Rules of Pro- For example, the Standards of Civil- call or leave messages on my voicemail fessional Conduct touch upon nearly ity remind us that “lawyers should unless it is to notify me of an Order to every aspect of communication within allow themselves sufficient time to Show Cause or some other emergency the legal profession. There are spe- resolve any dispute or disagreement relief being sought (in which case, cific rules governing how attorneys by communicating with one another and the phone call is MANDATORY); 2) communicate with clients (New York You must copy my client on all email Rules of Professional Conduct (RPC) communications to me; 3) You may 1.4), unrepresented parties (RPC 4.3), The Attorney Professionalism Committee not copy or blind copy your own cli- jurors (RPC 3.5), and even how they invites our readers to send in comments ent to emails to me and my client; 4) advertise their services to the public or alternate views to the responses Do not follow up on any communica- at large (RPC 7.1). Surprisingly, the printed below, as well as additional tions with me until I have had a week Rules of Professional Conduct do not hypothetical fact patterns or scenarios to to respond.” Can an attorney dictate expressly govern how lawyers should be considered for future columns. Send rules for how another attorney com- communicate with one another. See your comments or questions to: NYSBA, municates with them? Even if I ignore Ethics Opinion No. 1124 (“no provision One Elk Street, Albany, NY 12207, Attn: these rules, what can I do to deal with in the Rules of Professional Conduct . . Attorney Professionalism Forum, or by an attorney who is so difficult and non- . mandates how lawyers must commu- email to [email protected]. responsive? nicate with each other”). This is likely This column is made possible through While I am on the subject of attor- because the Rules essentially treat our the efforts of the NYSBA’s Committee on ney communications, I just learned profession as “largely self-governing” Attorney Professionalism. Fact patterns, that one of my clients was getting a trusting that lawyers – as members names, characters and locations presented “second opinion” from another attor- of a vocation founded principally on in this column are fictitious, and any resem- ney about a case I am handling. I am honesty and integrity – will hold them- blance to actual events or to actual persons, not sure how this new attorney met selves and their colleagues account- living or dead, is entirely coincidental. These my client, but I know that her firm able for following the professional and columns are intended to stimulate thought advertises heavily in our area for giv- ethical norms inherent to the profes- and discussion on the subject of attorney ing second opinions on pending cases, sion. See Preamble to the Rules of professionalism. The views expressed are and there was recently an article in the Professional Conduct, ¶ 4. Despite this those of the authors, and not those of the law journal that one of our motions void in the actual text of the Rules of Attorney Professionalism Committee or the was partly denied. I am concerned Professional Conduct, the Standards NYSBA. They are not official opinions on because I have no idea what this attor- of Civility set forth in Appendix “A” ethical or professional matters, nor should ney is telling my client and she might to the Rules contain several universal they be cited as such. be bad-mouthing me in the hopes of principles that lawyers should bear in

NYSBA Journal | September 2017 | 53 imposing reasonable and meaningful can now move on to his instructions of “reply all” for this reason. See Vin- deadlines in light of the nature and sta- on client communications. Simply put, cent J. Syracuse & Matthew R. Maron, tus of the case.” Standards of Civility, ¶ the Rules do not contain a provision Attorney Professionalism Forum, N.Y. II(B) (emphasis added). The Standards that require you to communicate with St. B.J., September 2012, Vol. 84, No. 7. further provide that lawyers should your adversary’s client. Just as the Limiting your use of “bcc:” is a way to make a good faith effort to consult with Ethics Committee could not pinpoint protect your clients from this frequent- other counsel regarding scheduling mat- a specific Rule that governed how ly committed human error. ters in order to avoid scheduling con- attorneys are to communicate with Ultimately, if playing by your adver- flicts. Id., ¶ III(D) (emphasis added). one another in Opinion No. 1124, they sary’s communication “rules” becomes Finally, Paragraph IV of the Standards could not identify anything in the too onerous, negatively impacts your of Civility dictates that “a lawyer Rules that requires a lawyer to com- ability to effectively represent your should promptly return telephone calls municate with his adversary’s client. client, or impedes the resolution of the and answer correspondence reason- Id. “It is not the lawyer’s responsibil- case, it is best to relay your concerns to ably requiring a response.” Id., ¶ IV. ity to keep the opposing counsel’s him and attempt to “work out . . . the While the provision does not indicate client ‘informed about the status of the methods of communication that will whose telephone calls and correspon- matter’ as required by Rule 1.4(a)(3). best facilitate resolution of the matter dence require a prompt response, one That is opposing counsel’s obligation at hand.” NYSBA Comm. on Prof’l can reasonably infer that calls and cor- under that Rule.” Id. Thus, you may Ethics, Op. 1124 (2017). As we often do respondence from opposing counsel – as a professional courtesy to your as lawyers, you should compromise would fall into that category. There- adversary – copy his client on all email and devise a communication strategy fore, it is reasonable to conclude that communications, but you are under no that is reasonable and feasible for both your adversary’s self-imposed, week- obligation to do so. parties. Above all else, the Ethics Com- long grace period for responding to Despite your adversary’s direc- mittee recommends that lawyers apply communications may run afoul of the tion to the contrary, you may in fact common sense to their dealings with Standards of Civility. But again, the copy or blind copy your own client one another. Id. Standards of Civility merely guide – on emails to your adversary and/or While the contours of attorney com- they do not govern. his client. According to NYSBA Com- munication preferences are a mixed bag A recent ethics opinion released in mittee on Professional Ethics Opinion of professional courtesies and recent May 2017 offers some more practical No. 1076 issued in December of 2015, ethics opinions, client solicitation and guidance on the ways and means of “[a] lawyer may blind copy a client attorney advertising are far more black “proper” lawyer-to-lawyer communi- on email correspondence with oppos- and white. According to the “No Con- cation. Responding to an inquiry from ing counsel, despite the objection of tact” rule of the Rules of Professional a lawyer whose adversary would only opposing counsel.” NYSBA Comm. on Conduct, “[i]n representing a client, respond to written communications Prof’l Ethics, Op. 1076 (2015). Keep in a lawyer shall not communicate or and preferred not to use the telephone, mind, however, that there are certain cause another to communicate about the New York State Bar Association’s risks involved with copying and blind the subject of the representation with (NYSBA) Committee on Professional copying email communications. The a party the lawyer knows to be repre- Ethics advised in Opinion No. 1124 Ethics Committee opined that while it sented by another lawyer in the matter, that “[a] lawyer may communicate is not unethical to copy or blind copy unless the lawyer has the prior consent with opposing counsel in any man- clients on email correspondence with of the other lawyer or is authorized to ner he chooses . . . regardless of the opposing counsel or adverse parties, do so by law.” RPC 4.2(a). The Ethics instructions of opposing counsel.” there are other practical reasons why Committee has opined, however, that NYSBA Comm. on Prof’l Ethics, Op. attorneys should think twice before the “No Contact” rule only applies to 1124 (2017). However, the Commit- doing so. According to the Committee, communications “made by a lawyer tee clarified that “opposing counsel “cc: risks disclosing the client’s email in the course of ‘representing a cli- is not required to respond to the law- address. It also could be deemed by ent.’” NYSBA Comm. on Prof’l Ethics, yer’s chosen method.” Id. Therefore, in opposing counsel to be an invitation to Op. 1010 (2014). Therefore, it does not response to your adversary’s instruc- send communication to the inquirer’s apply to communications from a third- tion to not call or leave him voice mes- client.” Id. With respect to the perils party firm in which the firm seeks to sages unless it is an emergency, you of using “bcc:,” the Committee stated obtain “new clients in matters in which may continue to call and leave him that while this may “initially avoid the the firm is not already involved.” Id. voice messages as you see fit; however, problem of disclosing the client’s email In other words, it is not unethical for a bear in mind that he is under no obli- address, it raises other problems if the lawyer or law firm to “poach” a client gation to respond in kind. client mistakenly responds to the email who is already represented by counsel Having addressed your adversary’s by hitting ‘reply all.’” Id. We previ- in an active matter, as long as the law- so-called “communication rules,” we ously recommended avoiding the use yer or law firm is not itself involved in

54 | September 2017 | NYSBA Journal the case. Therefore, despite your con- RPC 7.3, Cmt. [3] (emphasis added). about what your client discussed with cerns about the firm’s business model If the advertisement does not make the third-party attorney and what legal and their reputation in the legal com- reference to a specific incident, it is not advice, if any, was provided. munity, they may lawfully advertise considered to be a solicitation, and is The communication boundaries their “second opinion” services to your not subject to the additional restric- addressed here are complex, and as client. tions enumerated in Rule 7.3. See, e.g., professional norms change and tech- That being said, the third-party RPC 7.3(a)(2)(v) (solicitation not per- nology advances, the Rules of Profes- firm’s advertising tactics are subject mitted where lawyer intends but fails sional Conduct – including the Rules to the Rules governing legal adver- to disclose that services will be per- governing advertising and solicitation tisements and client solicitation. Pur- formed primarily by a different, unaf- – will have to evolve accordingly. What suant to Rule 1.0(a) of the Rules of filiated lawyer); RPC 7.3(h) (setting must remain constant, however, are Professional Conduct, an “advertise- forth requirement that soliciting law- the core values of courtesy and civil- ment” is defined as “any public or yer include certain information about ity, which attorneys should practice private communication made by or on his or her services); RPC 7.3(e) (apply- as a matter of course. Add in a touch behalf of a lawyer or law firm about ing specific restrictions on solicitations of common sense and most, if not all, that lawyer or law firm’s services, the relating to personal injury or wrong- communication hurdles can be cleared. primary purpose of which is for the ful death claims). Advertisements for Sincerely, retention of the lawyer or law firm.” “second opinion” services arguably The Forum by Rule 1.0(a). The Rules restrict and pro- approach the line between solicita- Vincent J. Syracuse, Esq. hibit certain types of legal advertising, tion and non-solicitation, but accord- ([email protected]) including statements or claims that are ing to the Ethics Committee, they are Carl F. Regelmann, Esq. false, deceptive or misleading (RPC permissible. See NYSBA Comm. on ([email protected]) 7.1(a)(1)), and impose limits on paid Prof’l Ethics, Op. 1010 (2014) (“A firm Richard W. Trotter endorsements and fictionalized por- may advertise that it is available to ([email protected]) trayals (RPC 7.1(c)). The Rules further provide second opinions on pending Amanda M. Leone, Esq. require a disclosure that the advertise- legal cases on which individuals are ([email protected]) ment is in fact an advertisement (RPC already represented.”). Therefore, the Tannenbaum Helpern Syracuse 7.1(f)) and impose pre-approval and services offered to your client by this & Hirschtritt LLP retention requirements (RPC 7.1(k)). third-party law firm are not subject to The Rules of Professional Conduct tougher scrutiny under Rule 7.3. also place certain restrictions on client If you do have legitimate concerns QUESTION FOR THE solicitation. Under Rule 7.3, “solicita- that this law firm violated one of the NEXT ATTORNEY tion” is defined as “any advertisement above-mentioned Rules on attorney PROFESSIONALISM FORUM initiated by or on behalf of a lawyer advertising or solicitation when it con- or law firm that is directed to, or tar- tacted your client, you may express On my return home from a summer geted at, a specific recipient or group those concerns to your client if such vacation, I almost had a panic attack of recipients, or their family members disclosure would be in his best inter- standing in line at U.S. Customs. The or legal representatives, the primary est, but be careful to do your research person in front of me was carrying purpose of which is the retention of the before making any false or unsubstan- a laptop with a flash drive, and the lawyer or law firm, and a significant tiated accusations. If you discover that customs agent instructed him to turn motive for which is pecuniary gain.” the firm has in fact violated one of the laptop on, plug in the flash drive, RPC 7.3(b). While this definition could the Rules of Professional Conduct, it and open certain documents on it. My theoretically encompass the third-par- may be more appropriate to notify the laptop was in my bag hanging over my ty firm’s conduct as you described Grievance Committee. shoulder. I started thinking about what it (i.e., targeting clients who have Finally, if you do reach out to the was on my laptop. I had been review- recently received adverse decisions third-party attorney to offer insight ing documents on a very sensitive deal and offering “second opinions”), the and explain aspects of the case, pro- between two well-known public com- comments to Rule 7.3 narrow the scope ceed with caution. Remember, you are panies that I am sure my client does of “solicitation” substantially. “[A]n still bound by the obligation to protect not want anyone to know about. I am advertisement in public media such your client’s confidential information very careful about cybersecurity, and as newspapers, television, billboards, gained during or relating to the repre- the laptop requires two-factor authen- web sites or the like is a solicitation if sentation. See RPC 1.6. The third-party tication to access any documents. But it makes reference to a specific person attorney is also bound by these obli- this border agent was directing the or group of people whose legal needs gations in his or her communications person to enter a password and show arise out of a specific incident to which with you. Thus, you should not expect him information on the computer with the advertisement explicitly refers.” that you will learn much information a number of people in the immedi-

NYSBA Journal | September 2017 | 55 ate vicinity who could see the screen. search? Can they make copies of mate- devices and confidential or sensitive Fortunately, I went through the check- rials on my devices? Are there excep- client information, what are my ethical point without having to even turn on tions for attorneys who are carrying responsibilities to my client? Does it my computer. But I travel frequently devices with sensitive or confidential matter if I have sensitive or confiden- and I always bring my laptop with me. client information? If an agent directs tial information from a potential client I know that a number of the attorneys me to show client information, should that has not yet retained me? What if at my firm regularly travel abroad, and I explain to the agent that I am an attor- the same issue arises with a customs many of them take their laptops and ney and carrying sensitive information agent from another country? Is there phones with them. I am now very con- that I cannot disclose? anything I should do to my devices cerned about even carrying my laptop If the agent insists on viewing the the next time I travel abroad to prevent to the airport. information despite my protests, is disclosure of client information? n Under what circumstances can there anything else I can do? Am I vio- Very truly yours, a customs agent demand to search lating any ethics rules by following the Justin Cancun through a passenger’s electronic directions of the agent? Am I breaking devices? Are there any limitations for any laws by refusing to comply with what the customs agent can and can’t the agent? If an agent does review my From the NYSBA Book Store

Probate and Administration EDITORS-IN-CHIEF Douglas H. Evans, Esq. Sullivan & Cromwell LLP, NY of New York Estates, Gary R. Mund, Esq. Second Edition Attorney-at-law, NY Probate and Administration of New York Estates is a compendium of vital PRODUCT INFO AND PRICES information covering all phases of estate administration, from securing 2015 / 1,096 PP., loose-leaf the will through final accounting. It is a handy, single-volume source for PN: 40054 (Print) quick answers to both straightforward and perplexing estate administra- PN: 40054E (E-Book) tion issues, and an authoritative source of background information for further research, if necessary. NYSBA Members $185 List Price $220 This revised second edition includes substantial updates and rewrites, $5.95 shipping and handling within the continental bringing all topics up to the current state of the law, and in particular, U.S. The cost for shipping and handling outside addresses many thorny tax issues in the ever-changing landscape of the continental U.S. will be based on destination and added to your order. Prices do not include estate taxation. applicable sales tax. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8689

56 | September 2017 | NYSBA Journal BECOMING A LAWYER BY LUKAS M. HOROWITZ Lukas M. Horowitz, Albany Law School Class of 2019, graduated from Hobart William Smith in 2014 with a B.A. in history and a minor in political science and Russian area studies. Following graduation, he worked for two years as a legal assistant at Gibson, McAskill & Crosby, LLP, in Buf- falo, New York, and with the New York Academy of Trial Lawyers hosting CLE programs. Lukas can be reached at [email protected].

Shaking Off the Sand!

wo months, 83 falafels, and a ency within the Israeli government privileged, etc. I am excited to delve sweet farmer’s tan later, and I so that where, for example, there is a deeper into this area of law. Tam back in the United States land tender that will impact existing I entered law school with an eye of America. The English language tenants, and to increase the likeli- on focusing on the environmental law sounds like music to my ears. hood of tenants knowing of these field. Land use planning is the first What an exceptional summer in tenders, the reports are published in class I will be taking within that focus exceptional company. both Hebrew and Arabic. With Arabs area. Similar to my undergraduate I spent most of the summer working making up a significant portion of years, in which I focused on classes in Israel at an NGO called the Associa- the lower socioeconomic population, within my major, I am treating this tion for Distributive Justice (ADJ). The it is important they, too, have the course with a similar level of impor- focus of this organization is the equi- ability to review relevant records. tance. A bonus of this class: a paper- table allocation of resources and land The ADJ submitted petitions and based final, as opposed to one of to all members of Israeli society. proposals to the Israel Land Author- those casual, relaxing four-hour final At the ADJ, I was tasked with iden- ity to achieve this. exams. tifying and locating law from countries My time spent working with the With the summer coming to a close, with a similar land distribution system ADJ was quite enjoyable. The only and my focus shifting back toward to that of Israel. In Israel, more than snag I encountered was when I was school and another semester at Albany 90 percent of the land is owned by the tasked with answering the phones. A Law School, I look forward to sharing government. To match this structure, I little tricky when one’s Hebrew vocab- the trials, and triumphs, of my second relied on Canada’s land system, where, ulary consists of five or six words! year with you. n similar to Israel, the government owns Back in the States, my thoughts roughly 89 percent of land in the coun- naturally turn to school. try. I look forward to my second fall While I was interning with the ADJ, semester in law school. Classes are I drafted a grant proposal, assisted a bit less menacing as I enter the with English-language communica- doors now as a 2L. As the Bar Exam tions with entities of the European looms in the background, I begin to Union, and performed substantial focus on classes that will aid me in research on various countries’ housing taking (and passing!) the exam, as and tenant law. well as classes in environmental law. Follow A significant problem facing the I am enrolled in a business organi- lower socioeconomic members of zations class, a land use planning NYSBA on Israeli society is tenancy protection. class, which has an emphasis on To be frank, there isn’t much in the environmental law, and an evidence Twitter law for the protection of tenants liv- class. All three of these, in addition ing in what we would call subsidized to the other courses I will be tak- or rent-controlled housing. To combat ing, are exciting to contemplate. Evi- Stay up-to-date on the latest some of the pitfalls of Israeli tenancy dence, on its face, sounds relatively law and its shortcomings, the ADJ has straightforward. Having worked in news from the Association launched multiple projects. a law firm before, I understand just One such project involved the ADJ how difficult and complex admitting www.twitter.com/nysba working to help ensure transpar- evidence can be, deciding what is

NYSBA Journal | September 2017 | 57 The Legal Writer Continued from Page 64 emotion and reaction from your read- incontrovertible? If you have answers ers. Because legal writing is formal, to these two questions, you should Replace “that that” with “that this” or avoid casual, impertinent, and joking explain them. Although concision is “that the.” tones. Keep your sentences short. Short key, don’t use an adverbial excess Differentiate between that (or which) sentences are businesslike and to the to save words. If you don’t explain and who. That and which refer to things, point. To avoid seeming biased, use yourself thoroughly, your readers will entities, concepts and animals. Who objective language whenever possible. begin to doubt the strength of your refers to people and to named animals When conveying thoughts on a matter arguments and the veracity of your and animals that have special quali- or person, remember that a true state- claims. ties. Who and whoever are used to refer ment needn’t contain disparaging or to subjects and subject complements, otherwise offensive language. Avoid Exercises: Absolutes and whereas whom and whomever are used biased modifiers and conclusions. Adverbial Excesses to represent objects. To choose the Don’t tell; show. Don’t just write some- Rewrite the following sentences. correct pronoun, isolate the subordi- thing. Set out the facts that show why 1. When Mr. Robinson was arrest- nate clause and then decide how the you’re right. Cut your adjectives and ed for possession, he said that he pronoun functions within it. Who occa- adverbs. Understate; never exaggerate. was “just holding it for a friend” sionally functions as a subject comple- — which is ridiculous; that’s ment in a subordinate clause. Subject Exercises: Professional Tone never the truth. complements occur within the linking Rewrite the following sentences. 2. Ms. Williams is a drug addict. verbs am, are, be, been, being, and is. 1. An employee who’s running As you know, Your Honor, drug late should at least call to let his addicts always lie about their Exercises: That vs. Which vs. Who manager know he’ll be late. drug habits. vs. Whom 2. The prosecutor’s motion should 3. The complaint is obviously ridic- Rewrite the following sentences. be denied. His argument is based ulous. 1. M&G is the law firm who repre- on a preposterous claim. 4. The witness’s testimony does not sents the defendant. 3. The lawyer was very rude to the coincide entirely with the facts. 2. The law clerk gave the judge the judge. He’s clearly lying. relevant law, which was meant 4. The egregious crime in question 5. The fact that Ms. Daniels has to help the judge decide the was committed a year ago today. stolen once before from Macy’s motion. 5. Anyone can see that Mr. Lewis proves she’s a kleptomaniac. 3. It’s uncomfortable to sit on a fired her because of his biased 6. The court attorney always reads chair which doesn’t have a cush- views. the calendar in court on Wednes- ion. 6. Pursuant to CPLR 3211 (a), plain- day mornings. 4. The Lower Manhattan office that tiff has no standing to sue. 7. Dr. Norman is undoubtedly is located in Tribeca is close to 7. Come on, Judge. You know as responsible for the patient’s the defendant’s home. well as I do that that excuse is a death. 5. The court officer that works on lie. 8. The insurance company is clear- Wednesdays never recognizes 8. Defendant took his hatred for his ly not liable for the cost of the the judge’s interns. mother-in-law to a whole new surgery. 6. The witness saw the man that level, and he killed her. 9. The plaintiff’s attorney delivered stole the car. 9. She can’t be trusted. She’s a liar an extremely underwhelming 7. The court held the 500-pound and everyone knows it. closing argument. man in contempt. 10. The victim bullied the defen- 10. I agree wholeheartedly. 8. This gun is the weapon which dant in the past. What makes Now that you’ve completed the was used in the bank heist. you think that the defendant exercises (we hope you didn’t peek 9. The woman identified the man wouldn’t kill the victim when at the answers), study the Legal Writ- that had robbed her. she had the chance? er’s answers and compare them with 10. The deliberation lasted for seven yours. hours because the jurors couldn’t Absolutes and Adverbial Excesses decide the witness that was tell- Avoid using absolutes like always or Answers: Wordiness ing the truth. never. These words are rarely accurate. 1. The word of is unnecessary in Avoid adverbial excesses, too. Legal this sentence. Eliminate it. Cor- Professional Tone writers often use words like certainly, rected Version: The New York When writing, you get to choose which clearly, and undoubtedly in place of State Supreme Court has subject- tone you’ll use. This decision is impor- a strong argument. Why is a state- matter jurisdiction over this case. tant because your tone is what evokes ment clear? What makes a statement

58 | September 2017 | NYSBA Journal 2. As of creates unnecessary wordiness. Eliminate it. Corrected Ver- Because legal writing is formal, avoid sion: The attorney hasn’t filed the motion yet. casual, impertinent, and joking tones. 3. The words “is the type of witness who” are superfluous. Delete them. Corrected Version: tence is a defining clause. Use that this particular gun is the one He’d lie under oath. that. Corrected Version: The law used in the heist. This sentence 4. Make this sentence more suc- clerk gave the judge the relevant is a defining clause. Use that. cinct by replacing “have an law that was meant to help the Corrected Version: This gun is the impact on” with the less-wordy judge decide the motion. Or, weapon that was used in the “affect.” Corrected Version: The better, delete “that was meant”: bank heist. jury’s decision will affect the The law clerk gave the judge the 9. Who should be used when refer- plaintiff’s future. relevant law to help the judge ring to people. Corrected Version: 5. This sentence contains a nomi- decide the motion The woman identified the man nalization. Remove it. Corrected 3. Because the subject of this sen- who robbed her. Version: Whether the court will tence is one type of chair, it’s 10. The important information in adjourn the case depends on sev- restrictive, which means we this sentence is that the jurors eral factors. should use that instead of which. deliberated for seven hours. The 6. Using the word of in dates and Corrected Version: It’s uncomfort- latter half of the sentence con- years is superfluous. Corrected able to sit on a chair that doesn’t tains nonessential information. Version: The crime was commit- have a cushion. Use which. Corrected Version: The ted in October 2012. 4. Removing the part of the sen- deliberation lasted for seven 7. Make this sentence more concise tence that tells us in which hours because the jurors couldn’t by replacing “a large percentage neighborhood the Lower Man- decide which witness was telling of” with the less-wordy “many.” hattan office is located doesn’t the truth. Corrected Version: Many women change the meaning of the attended the judge’s seminar at sentence. Use which. Corrected Answers: Professional Tone Columbia Law School. Version: The Lower Manhattan 1. This sentence lacks tact. Cor- 8. Although this sentence doesn’t office, which is located in TriBe- rect it. Make the sentence gen- look wordy, it is. The sentence Ca, is closest to the defendant’s der neutral. Corrected Version: should be written in the active home. Employees should notify their voice. Corrected Version: Judge 5. Because “[t]he court officer” manager if they’re going to be Learned Hand wrote the deci- is the subject of the sentence, late. sion. use who. Corrected Version: The 2. Calling the argument “preposter- 9. This sentence contains many court officer who works on ous” is unnecessarily disparag- redundant words. Eliminate Wednesdays never recognizes ing and will lead to reader push- them. Corrected Version: After the judge’s interns. Or, if there’s back. Think twice before using Defendant terminated Plaintiff’s only one court officer: The court biased conclusions. employment, Plaintiff sued. officer, who works on Wednes- 3. This sentence contains disparag- 10. Delete “of” after both. Corrected days, never recognizes the ing language. Explain what made Version: Both judges decided the judge’s interns. the lawyer come across as rude. same case. 6. Because “a man” is a person and Corrected Version: The lawyer the person is the subject of the interrupted the judge several Answers: That vs. Which vs. Who verb in this sentence, use who. times during the oral argument. vs. Whom Corrected Version: The witness And cut “very.” 1. Because the sentence is about saw the man who stole the car. 4. There’s no need to call the crime which law firm represents the 7. Adding a structural “that” to the “egregious.” Use facts to let oth- defendant, the name of the law sentence will make it clearer. The ers decide whether the crime firm representing the defendant judge didn’t hold a 500-pound was egregious. Eliminate the is essential information. Corrected man. Corrected Version: The court words “in question.” Corrected Version: M&G is the law firm held that the 500-pound man Version: Defendant committed that represents the defendant. was in contempt. the crime a year ago today. 2. Because this sentence implies 8. Because this sentence is about 5. The unedited sentence contains that the law clerk gave the judge which gun was used in the bank both an absolute word (“any- only the relevant law, this sen- heist, it’s essential information one”) and accuses Mr. Lewis of

NYSBA Journal | September 2017 | 59 prejudice. Rewrite the sentence 9. The tone of the unedited sen- 2. It’s inaccurate to say that drug to contain neither. Corrected Ver- tence is disparaging. Revise it. addicts “always” lie about their sion: Mr. Lewis fired his assis- Corrected Version: Your Honor, I drug habits. Rephrase the sen- tant. ask that the witness’s testimony tence. Corrected Version: Ms. Wil- 6. This sentence contains legalese. be stricken because she has lied liams is a drug addict. As you Legalese is unprofessional tone. under oath. know, Your Honor, she might Rather than “pursuant to,” use 10. This statement should be not be entirely forthcoming a common and simple word like rephrased to avoid using con- about her drug habits. “under.” Corrected Version: Under demning and disparaging 3. Calling a complaint “obviously CPLR 3211 (a), plaintiff has no language. Corrected Version: Evi- ridiculous” is rude. Write that standing to sue. dence proves that the defendant the complaint “lacks merit” or 7. The tone of this sentence is wanted revenge on the victim for is “unfounded” instead. Then too casual and dramatic. Cor- bullying him in the past. explain why it lacks merit or is rected Version: The excuse is a lie unfounded. Corrected Version: because of X, Y, and Z. Answers: Absolutes and The complaint is unfounded 8. The unedited sentence contains Adverbial Excesses because of X, Y, and Z an accusatory implication (“he 1. The unedited sentence contained 4. The words “he is clearly lying” . . . killed her”). We don’t know both a disparaging word (“ridic- are both superfluous and dispar- whether the defendant really ulous”) and an absolute word aging. Remove them. Corrected killed his mother-in-law. Cor- (“never”). Remove both. Correct- Version: The witness’s testimony rected Version: Defendant stated ed Version: When Mr. Robinson doesn’t coincide with the facts. that he hated his mother-in-law, was arrested for possession, he 5. Just because Ms. Daniels has stolen and the evidence indicates that said he was “just holding it for a once before doesn’t mean she’s a he is responsible for her death. friend.” kleptomaniac. Delete the disparaging phrase. Corrected Version: Ms. Daniels has stolen from Macy’s. 6. In this sentence, using “always” is correct because it’s accurate. The court attorney read the cal- Informed endar only on Wednesday mornings. The sentence is correct. Consumers Make 7. Undoubtedly is an adverbial excess. Delete it. Corrected Version: Dr. Nor- man is responsible for the patient’s Better Clients death because of X, Y, and Z. 8. Clearly is an adverbial excess. Get rid of it. Corrected Version: The insurance company isn’t respon- LEGALEase Brochure Series From sible for the cost of the surgery. The New York State Bar Association 9. The word extremely adds little to the sentence. Remove it. Cor- 25 titles on topics your clients need rected Version: The plaintiff’s to know...written by experts from attorney delivered an under- NYSBA’s Sections and Committees. whelming closing argument. 10. The word wholeheartedly adds Display Them. Send Them. Use Them. little to the sentence. Remove it, unless you want to be dramatic. Corrected Version: I agree. n For more information, call GERALD LEBOVITS ([email protected]), a 800-582-2452 or New York City Civil Court judge, is an adjunct at Columbia, Fordham, and NYU Law Schools. He 518-463-3724 or thanks judicial interns Alexandra Dardac (Ford- Order online ham University) and Rosemarie Ferraro (Univer- Mention Code PUB1046 @ www.nysba.org/legalease sity of Richmond) for their research.

60 | September 2017 | NYSBA Journal CLASSIFIED NOTICES

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62 | September 2017 | NYSBA Journal 2017-2018 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

First District Singer, David C. Murphy, Hon. James P. Weathers, Wendy M. Sharon Stern Gerstman Aaron, Stewart D. Sonberg, Hon. Michael R. * Richardson, M. Weis, Robert A. President Abramson, Joel E. Spirer, Laren E. Catherine Tenth District Buffalo †* Alcott, Mark H. * Standard, Kenneth G. Williams, James M. Barcham, Deborah Seldes Alvarez, Janet Stong, Hon. Elizabeth S. Sixth District Block, Justin M. Michael Miller Berman, Mark Arthur Temkin, Barry R. Abbott, Rachel Ann * Bracken, John P. President-Elect Billings, Hon. Lucy Tesser, Lewis F. Barreiro, Alyssa M. Burns, Carole A. New York Brown Spitzmueller, Udell, Jeffrey A. Corbin, Gemma Rossi Calcagni, John R. Janiece Weiss, Mira B. Denton, Christopher Christopher, John P. Scott M. Karson Brown, Earamichia Whiting, Judith Flanagan, Patrick J. Clarke, Christopher Treasurer Chambers, Hon. Cheryl E. Whittingham, Kaylin L. Gutenberger, Kristin E. Justin Chang, Vincent Ted †* Younger, Stephen P. 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Masucci, Deborah Meisenheimer, Patricia M. irst istrict * Forger, Alexander D. Cicero, Jill M. F D Napoletano, Domenick Pessala, Hon. Elizabeth D. Freedman, Hon. Helen E. Gaddis, Sheila A. Taa R. Grays, New York Richman, Steven H. Poster-Zimmerman, Gallagher, Pamela Lee Getz, Jon P. † Shautsova, Alena Lynn D. Carol A. Sigmond, New York Galligan, Michael W. Hetherington, Bryan D. Slavin, Barton L. * Pruzansky, Joshua M. Gische, Hon. Judith J. Jackson, LaMarr J. Second District Steinhardt, Hon. * Rice, Thomas O. Glass, David L. Lawrence, C. Bruce Marsha L. Singer, Hon. Conrad D. Domenick Napoletano, Brooklyn Goldberg Velazquez, * Moore, James C. Strenger, Sanford Elena Molly Weston, Hon. Michelle Third District Moretti, Mark J. Tarver, Terrence Lee Goldfarb, David Henry M. Greenberg, Albany Third District * Palermo, Anthony Tully, Rosemarie Grays, Taa R. Robert Barclay, Kathleen Anne Wicks, James M. Fourth District †* Gutekunst, Claire P. Burke, Jane Bello * Schraver, David M. 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Alomar, Ridgewood Martin Owens, Deborah Stabinski, Alexander Cohen, Orin J. McNamara, Christopher Ninth District Twelfth District Leon Lamberti, Anthony J. James * Yanas, John J. Bowler, Richard J. Steven E. Millon, New York Martin, Edwina Frances McNamara, Michael J. Braunstein, Lawrence Mascolo, Anthony A. Fourth District † Miller, Michael Jay McGinn, Sheila T. Thirteeth District Clouthier, Nicole L. Minkoff, Ronald C. Burke, Michael K. Miller, Mrs. Claire C. Jonathan B. Behrins, Staten Island Moskowitz, Hon. Karla Coffey, Peter V. Burns, Stephanie L. Owens, John, Jr. Coseo, Matthew R. Cobb, Lisa M. Out of State MEMBERS-AT-LARGE OF THE Prager, Bruce J. Jones, Barry J. Fay, Jody Jochmans, Hilary F. EXECUTIVE COMMITTEE Quartaro, Neil A. King, Barbara J. Fox, Michael L. Millett, Eileen D. Richter, Aimee L. Rodriguez, Patricia L. R. Goldschmidt, Sylvia Sulimani, Natalie Earamichia Brown Rosner, Seth Schwenker, Eric C. Hyer, James L. Sciocchetti, Nancy Margaret J. Finerty Russell, William T., Jr. Keiser, Laurence Safer, Jay G. Sharkey, Mrs. Lauren E. Kirby, Dawn Michael W. Galligan Schnabel, David H. Walsh, Joseph M. Levin Wallach, Sherry Sarah E. Gold Sen, Diana S. Wildgrube, Michelle H. Marcus, Robert B. * Seymour, Whitney * Miller, Henry G. Richard M. Gutierrez Fifth District North, Jr. Fennell, Timothy J. * Ostertag, Robert L. Bryan D. Hetherington Shamoon, Rona G. Gaal, John Preston, Kevin F. Shampnoi, Elizabeth Drew Jaglom Gensini, Gioia A. Schriever, Andrew P. Jean †* Getnick, Michael E. Schub, Benjamin E. Elena DeFio Kean Sicular, David R. Hage, J. K., III Starkman, Mark T. Bruce J. Prager Sigmond, Carol Ann LaRose, Stuart J. Thaler-Parker, Jessica D. Silkenat, James R. Sandra Rivera McCann, John T. Townley, Rosemary A. William T. Russell, Jr.

† Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | September 2017 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Legal-Writing Exercises: Part III

n the last issue of the Journal, the ositional phrase (example: “the editing tial information. If the word or concept Legal Writer discussed cowardly of articles” becomes “editing articles”). following that or which is one of sev- Iqualifiers, legalese, modifiers, and To write more crisply, write in the eral, use that. If the word or concept nominalizations. This issue of the active voice, and avoid nominaliza- expresses a totality, use which. Which multi-part series covers wordiness; tions and legalese. should be surrounded by a comma, mistakes involving that, which, who, whereas that shouldn’t have commas and whom; tone; and absolute lan- Exercises: Wordiness around it. guage and adverbial excesses. At the Rewrite the following sentences. Use that as a structural device end of each section are editing exercis- 1. The Supreme Court of the State to aid understanding. Example: “The es. You can add words, change words, of New York has subject-matter People alleged defendant committed delete words, or rearrange words — jurisdiction over this case. murder.” Becomes: “The People alleged whatever you think is best. After com- 2. The attorney hasn’t filed the that defendant committed murder.” In pleting all the exercises, look at the motion as of yet. this sentence, adding that aids under- answers at the end of the article to see 3. He’s the type of witness who’d standing because “The People” can’t whether your answers are correct. lie under oath. allege a defendant. 4. The jury’s decision will have an Wordiness impact on the plaintiff’s future. Short sentences are read and under- 5. Whether the court will adjourn Writers’ use of the word stood more easily than long ones. And the case is dependent on several of is a main contributor many legal documents are unnecessar- factors. ily wordy. Writers’ use of the word of is 6. The crime was committed in to wordiness. a main contributor to wordiness. When October of 2012. possible, invert or rearrange a sentence 7. A large percentage of women Eliminate the nonstructural that. to delete of. attended the judge’s seminar at Example: “The advice that he gave to Some tips: Columbia Law School. the class is not to be wordy.” Becomes: • Delete and, if necessary, replace as 8. The decision was written by “The advice he gave to the class is not of. Judge Learned Hand. to be wordy.” • Delete of after “all” and “both,” 9. Defendant stated that after he Use that to distinguish between except when followed by a pro- gave Plaintiff advance notice direct and indirect discourse. Direct noun. of termination of employment, discourse: “The senior partner said, ‘Bill • Delete of after “alongside,” Plaintiff sued. researched the issues.’” Indirect dis- “inside,” “off,” and “outside.” 10. Both of the judges decided the course: “The senior partner said that • Delete of in dates and years. same case. Bill researched the issues.” Not: “The • Revise sentences to remove of senior partner said Bill researched the abstractions, such as “factor of,” That vs. Which vs. Who vs. Whom issues.” Always eliminate the extra “kind of,” “matter of,” “sort of,” Which word you choose between that that. Example: The court attorney “state of,” and “type of.” and which affects how your readers explained that although she will only • Use “except for” to replace “out- will understand the sentence. That is draft the decision, that no one will side of.” restrictive (defining); which is non- read it.” Becomes: “The court attorney In addition, remove redundant restrictive (non-defining). Defining explained that although she will only words and phrases (example: “In some clauses provide essential information draft the decision, no one will read it.” instances” becomes “Sometimes”) and that is important for the sentence; non- substitute one word for a wordy prep- defining clauses introduce nonessen- Continued on Page 58

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